Loeffler v. Tisch Petition for Writ of Certiorari

    In T he

Supreme (Emtrt of Uje Bniteb States
October Term, 1986

T heodore J. Loeffler, 
Petitioner,

vs.

Preston R. T isch, Postmaster General 
Of T he United States,

Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Lisa S. Van Amburg 
Schuchat, Cook & Werner 
1221 Locust, Suite 250 
St. Louis, Missouri 63103 
(314) 621-2626
Counsel fo r  Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477



A

QUESTION PRESENTED

Whether the United States Postal Service, created by an act of 
Congress in 1970 and therein authorized “ to sue and be sued,” 
39 U.S.C. 401(1), is immunized against an award of pre­
judgment interest in a suit brought pursuant to the Equal 
Employment Opportunity Act of 1972, 42 U.S.C. 2000e, elseq.

LIST OF PARTIES

The parties to this proceeding are the petitioner, Theodore J. 
Loeffler, and the respondent Preston R. Tisch, in his official 
capacity as Postmaster General of the United States.



TABLE OF CONTENTS

Page

Question Presented..........................................................  i

List Of Parties ..................................................................  i

Table Of Contents............................................................  iii

Table Of Authorities........................................................  v

Opinions Below................................................................  1

Jurisdiction........................................................................  2

Statute Involved................................................................  2

Statement Of C ase............................................................  2

Reasons For Granting The W rit.......................................  4

I. The Decision Below Conflicts With Three
Other Circuits Allowing Interest Against The 
Postal Service..................................................  6

II. The Decision Below Is Inconsistent With This
Court’s Characterization Of The Postal Ser­
vice’s Liability As The Same As That Of Any 
Other Business ...............................................1 7

III. The Public Interest Is Best Served By Allow­
ing Prejudgment Interest Against The Postal 
Service Under Title V I I ...................................  11

Conclusion........................................................................  12

Appendix:

A - Order Of The United States Court Of Appeals
(December 8, 1986)...............    A-l

B - Order Of The United States Court Of Appeals
(December 30, 1985)......................................... A-12

iii



IV

C - Order Of The United States District Court
(October 25, 1984)..........................................  A-21

D - Memorandum And Order Of The United
States District Court (October 1, 1984).......... A-22

E - Order Of The United States District Court
(December 27, 1983)......................................... A-25

F - Memorandum Of The United States District
Court (October 27, 1983).................................  A-26

V

TABLE OF AUTHORITIES

Page

Active Fire Sprinkler Corp. v. The United States Postal 
Service and John T. Brady and Co., Slip Opinion,
No. 86-6034, (1st Cir. Feb. 3, 1987).......................  8

Cross v. United States Postal Service, 733 F.2d 1327,
1332 (8th. Cir. 1984) (en banc) (Arnold, J. dissen­
ting) (equally divided court), cert, denied -----
U.S_____105 S.Ct. 1750(1985).............................  6,8

Federal Housing Administration v. Burr, 309 U.S. 242,
245(1940)..................................................................  6

Franchise Tax Board of California v. United States
Postal Service, 467 U.S. 512 (1984)....................5,6,7,8,9,10

Hall v. Bolger, 768 F.2d 1148 (9th Cir. 1974).................. 4,7

Library of Congress v. Shaw, 106 S.Ct. 2957 (1986)........4,9,10

Milner v. Bolger, 546 F.Supp. 375 (E.D. Cal. 1982) . . . .  6,8

Nagy v. United States Postal Service, 773 F.2d 1190
(11th Cir. 1985)........................................................  4,6

R & R Farm Enterprises v. Federal Crop Ins. Corp.,
788 F.2d 1148, 1153, n.5 (5th Cir. 1986).................  8

Standard Oil Co. v. United States, 267 U.S. 76, 79
(1925) 106 S.Ct. at 2963 n.9 ....................................  4,11

West Virginia v. United States, 479 U.S------- - 93 L.Ed.
2d 639 at 646. 107 S.Ct-------, (Jan. 1987)..............  11

White v. Bloomberg, 501 F.2d 1379 (4th Cir. 1974)........ 4,7



No
In The

SniprEtne (Eourt of tlje United fctaUa
October Term, 1986

Theodore J. Loeffler, 
Petitioner,

vs.

P reston R. T isch, Postmaster General 
Of The United States,

Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

The Petitioner, Theodore J. Loeffler, respectfully prays that a 
Writ of Certiorari issue to review the judgment and opinion of 
the United States Court of Appeals for the Eighth Circuit (En 
Banc) entered in the above-captioned proceeding on December 
8, 1986.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the 
Eighth Circuit En Banc is as yet unreported but is reprinted in 
the Appendix hereto at page A-l.

The three-judge panel opinion preceding the En Banc deci­
sion below is reported at 780 F.2d. 1365 (8th Cir. 1985) and is 
reprinted in the Appendix hereto at page A-12.



— 2 —

The opinion of the United States District Court for the 
Eastern District of Missouri is unreported but is reprinted in the 
Appendix hereto at page A-26.

JURISDICTION

On December 8, 1986, the United States Court of Appeals for 
the Eighth Circuit issued its order affirming the District Court’s 
judgment denying prejudgment interest.

Jurisdiction of the Court is invoked under 28 U.S.C. Section 
1254(1) and 2101(c).

STATUTE INVOLVED

The Postal Reorganization Act of 1970 provides in relevant 
part, as follows at 39 U.S.C. 401(1):

The Postal Service shall have the following general powers:

1. To sue and be sued in its official name;.......... ”

STATEMENT OF THE CASE

Petitioner Loeffier is a male rural carrier who prevailed in the 
district court on his claim of reverse sex discrimination against 
the United States Postal Service under Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. 2000e-16. The 
district court found that the Postal Service unlawfully discharg­
ed him because of his sex, ostensibly for conduct which female 
rural carriers openly engaged in without suffering like 
discipline.

The court awarded Loeffier reinstatement, back pay of 
$91,871.00, attorney’s fees and expenses but denied him pre­
judgment interest on his back pay, holding that the Postal Ser­
vice was shielded by the cloak of sovereign immunity from an 
award of prejudgment interest under Title VII.

A panel of the United States Court of Appeals for the Eighth 
Circuit upheld the denial of prejudgment interest on the basis of

sovereign immunity. Thereafter, a Rehearing En Banc was 
granted and the Court of Appeals, in a 6 to 5 opinion, affirmed 
the denial of prejudgment interest. The Court En Banc reason­
ed that, when the Postal Reorganization Act was passed in 1970, 
creating the Postal Service and subjecting it to a “ sue and be 
sued” clause, sovereign immunity was waived. However the 
waiver did not reach Title VII, because in 1970, Title VII did not 
extend to federal instrumentalities, including the Postal Service. 
Later, in 1972, when Congress amended Title VII to reach the 
federal government, it did not directly speak to the question of 
interest. Therefore, the court reasoned, immunity remains in 
effect to bar interest awards.



— 4 —

REASONS FOR GRANTING THE WRIT

In Library o f Congress v. Shaw ,___ U .S .____ , 106 S.Ct.
2957 (1986), the Court recently held that Congress in its 1972 
amendments to Title VII, did not waive the Government’s im­
munity from interest. The Court cited the rule that, absent ex­
press congressional consent waiving sovereign immunity, in­
terest cannot be awarded against the Government. Id. at 2961.

However, in footnote 5 of the Shaw opinion, the Court stated 
that the requirement of an express waiver of sovereign immunity 
as to interest is “ inapplicable where the Government has cast 
o ff the cloak o f sovereign immunity and assumed the status o f a 
private commercial enterprise. See, e.g., Standard Oil Co. v. 
United States, 267 U.S. 76, 79 (1925).” 106 S.Ct. at 2963 n.9 
(emphasis added). The Court in ■S/mwleft unresolved, however, 
the question of whether or not the Postal Service, created in 
1970 by the Postal Reorganization Act and therein authorized 
‘‘to sue and be sued,” is the kind of ‘‘private commercial enter­
prise” referred to at footnote 5.

This case directly presents that issue left unresolved by Shaw: 
Whether or not the Postal Service is immune from prejudgment 
interest awards under Title VII. By accepting certiorari, the 
Court can lay to rest a nagging and recurrent debate within the 
federal court system.

On the issue of prejudgment interest under Title VII, the deci­
sion below squarely and openly conflicts with Nagy v. United 
States Postal Service, 773 F.2d 1190 (11th Cir. 1985). In addi­
tion, two other circuits have held that the ‘‘sue or be sued” 
clause waives sovereign immunity to post-judgment interest 
against the Postal Service under similar federal employment 
statutes. White v. Bloomberg, 501 F.2d 1379 (4th Cir. 1974) 
and Hall v. Bolger, 768 F.2d 1148 (9th Cir. 1974). Although 
White v. Bloomberg and Hall v. Bolger were not Title VII cases, 
the courts’ rationale conflicts with that of the Eighth Circuit 
below.

Furthermore, the opinion below resolves the interest issue in a 
manner seemingly inconsistent with Franchise Tax Board o f  
California v. United States Postal Service, 467 U. S. 512 (1984) 
and with the Court’s historical method of analyzing broad 
waivers of sovereign immunity such as the ‘‘sue and be sued” 
clause in the Postal Reorganization Act (herein referred to as 
‘‘PRA” ). The court below reasoned that because the PRA 
preceded the 1972 Amendments applying Title VII to federal 
agencies and, because there is no explicit reference to interest as 
an element of damages in Title VII, immunity remains in effect 
to bar interest awards. This logic denies prospective effect to 
the “ sue and be sued” clause for a normal element of damages, 
interest, in causes of action which may become applicable to the 
Postal Service after its genesis.

The reasoning of the court below upsets the well-settled prin­
ciple that, when Congress launches a governmental agency into 
the commercial world and endows it with authority to “ sue or 
be sued” , the agency is no less amenable to judicial process than 
a private enterprise under like circumstances would be. Fran­
chise Tax Board o f  California v. United States Postal Service, 
supra at 520.

i
Finally, in the long run, the Eighth Circuit’s decision does a 

disservice to the public interest. The Postal Service is one of the 
largest employers in the country generating much litigation 
under Title VII. Meritorious cases such as this might have been 
settled earlier had the Postal Service not enjoyed the free use of 
over Ninety Thousand Dollars of Loeffler’s back pay for over 
five years.

i
The cloak of immunity denying prejudgment interest to suc­

cessful plaintiffs allows the Postal Service to escape the same 
economic risks that confront other private sector employers.
Only when this cloak is removed will the quality of management 
decision-making in employment matters at the Postal Service 
rise to th* level of p~v2te industry in the free commercial world.



— 6 —

I. The Decision Below Conflicts With Three Other Cir­
cuits Allowing Interest Against The Postal Service.

On the issue of prejudgment interest under Title VII, the deci­
sion below openly and squarely conflicts with Nagy v. United 
States Postal Service, 773 F.2d 1190(11th Cir. 1985). Thesingle 
issue decided in Nagy was the same as that presented in this 
case. The Nagy court, citing Franchise Tax Board, distinguish­
ed the Postal Service due to the Reorganization Act’s “ sue and 
be sued” clause, from other federal agencies “ shrouded with 
sovereign immunity” . Nagy v. United States Postal Service, 
773 F.2d. at 1192. In footnote 2, of the decision the Nagy court 
expressly embraced Judge Arnold’s dissent in an earlier case 
before the Eighth Circuit on the same issue.1

The decision in Nagy followed this Court’s approach to 
analyzing the scope of a general waiver of sovereign immunity. 
Citing Federal Housing Administration v. Burr, 309 U.S. 242 
(1940) and Franchise Tax Board, the Eleventh Court reiterated 
that a “ sue and be sued” clause creates a presumption of waiver 
of sovereign immunity. This presumption can be rebutted in a 
particular case only upon showing that a finding of waiver 
would either (1) be inconsistent with the statutory scheme; or, 
(2) gravely interfere with the government’s function; or (3) be 
inconsistent with the plain purpose of Congress in that case to 
use “ sue and be sued” in a narrow sense. The court then found 
no “ plain” purpose in the 1972 amendments to Title VII to limit 
the general waiver of sovereign immunity in Section 401(1).

In Nagy the court also embraced Milner v. Bolger, 546 
F.Supp. 375 (E.D. Cal. 1982) which squarely holds that the 
general no-interest rule applicable to federal agencies sued 
under Title VII does not apply to the Postal Service. This Court 1

1 Cross v. United States Postal Service, 733 F.2d 1327, 1332 (8th. 
Cir. 1984) (En Banc) (Arnold, J. dissenting) (equally divided Court), 
cert, denied___ U.S______ 105 S. Q . 1750 (1985).

— 7 —

also referred to Milner v. Bolger as authority in Franchise Tax 
Board when it stated: “ . . .[t]he nearly universal conclusion of 
the lower federal courts has been that the Postal Reorganization 
Act constitutes a waiver of sovereign immunity” . Id. at 519, 
n.12.

However, in the present case, by a slim majority, the Eighth 
Circuit the reasoning of the Nagy court on the
grounds that at the time Congress passed the Postal Reorganiza­
tion Act, it had not yet extended Title VII to federal agencies. 
Consequently, the court’s decision below has resulted in a con­
flict between it and the Eleventh Circuit as well as the District 
Court in another circuit.

To the extent that the decision of the court below rejects the 
significance of the “ sue or be sued” language of the 1970 PRA, 
it conflicts with decisions in the other circuits on this issue. 
In White v. Bloomburg, 501 F.2d. 1379 (4th Cir. 1974), the 
court held that the “ sue and be sued” clause of the PRA re­
quired the Postal Service to pay interest on judgments resolved 
against it just like any other private employer. The White Court 
followed the traditional analysis that a broad waiver of immuni­
ty like that found in the PRA cannot be restricted by inference 
except under exceptional circumstances.

Likewise, in Hall v. Bolger, 768 F.2d 1148 (9th Cir. 1985) the 
Ninth Circuit held that post-judgment interest on an award of 
attorney’s fees against the Postal Service under 29 U.S.C. Sec­
tion 791, forbidding handicap discrimination, was not barred by 
sovereign immunity. Citing Franchise Tax Board, the court 
found that Congress had waived sovereign immunity with 
respect to awards of post-judgment interest against the Postal 
Service by way of the “ sue and be sued” clause and that the 
Postal Service’s liability is the same as any other business. In 
Hall the court cited with approval Judge Arnold’s dissent in 
Cross v. United States Postal Service, 733 F.2d 1327, 1332 (8th 
Cir. 1984) (En Banc). Hall v. Bolger, supra at 1151. Clearly 
then, the issue of the effect of the “ sue and be sued” clause on



— 8 —

the Postal Service’s amenability to interest requires this Court’s 
final authoritative voice.

The split among the four circuits on the interest issue has been 
noted in a related case in the Fifth Circuit in (R & R Farm Enter­
prises v. Federal Crop Ins. Corp., 788 F.2d 1148, 1153, n.5 (5th 
Cir. 1986) and by the Second Circuit in a recent decision analyz­
ing the scope of the waiver of immunity in the “ sue or be sued” 
clause of Section 401(1). Active Fire Sprinkler Corp. v. The 
United States Postal Service and John T. Brady and Co., Slip 
Opinion, No. 86-6034, (1st. Cir. Feb. 3, 1987). Obviously, the 
circuits are fractured on the interest issue and require this 
Court’s guidance on this troublesome and recurring question.2

11. The Decision Below Is Inconsistent With This Court’s 
Characterization Of The Postal Service’s Liability As 
The Same As That Of Any Other Business.

In a recent unanimous decision, this Court explicitly stated “ .
. .  we must presume that the Service’s liability is the same as that 
o f any other business. ” Franchise Tax Board o f California v. 
United States Postal Service, 467 U.S. 512, 520 (1984) (emphasis 
added). In Franchise Tax Board, the court held that sovereign 
immunity is not a bar to a state agency’s order commanding the 
Postal Service to withhold delinquent taxes from employees’ 
wages. The Court said that “ Congress . . . indicated [in the 
Postal Reorganization Act of 1970] that it wished the Postal 
Service to be run more like a business than had its predecessor, 
the Post Office Department. ” Id. at 2553-54 (emphasis added). 
Significantly, the Court in Franchise Tax Board cited Milner v. 
Bolger, 546 F.Supp. 375 (E.D. Cal. 1982) with approval. Milner

2 Indeed, the Eighth Circuit alone has seated two En Banc panels to 
deal solely with the prejudgment interest issue against the Postal Ser­
vice under Title VII. In addition to the 6-5 en banc decision below, the 
court En Banc previously split 4-4 in Cross v. United States Postal Ser­
vice, 733 F.2d 1332 (8th Cir. 1984), cert, denied, 105 S.Ct. 1750 
(1985).

squarely holds that the general no-interest rule applicable to 
federal agencies sued under Title VII does not apply to the 
Postal Service. This Court already considers the Postal Service 
to be like a private commercial enterprise for purposes of 
sovereign immunity. There is no logical reason for deciding as 
the court below did, that the Postal Service is immune from in­
terest awards while at the same time this Court holds that the 
PRA eliminated its immunity from civil process for tax delin­
quencies.

In Library O f Congress v. Shaw ,___ U .S .-------106 S.Ct.
2957 (1986) the court held that sovereign immunity bars an 
award of interest in Title VII cases against agencies of the 
federal government. However, in footnote 5 of its opinion the 
court clearly carved out an exception to the general no-interest 
rule: “ . . . where the Government has cast off the cloak of 
sovereignty and assumed the status of a private commercial 
enterprise.” 106 S.Ct. at 2963 n.5.

This Court’s decisions in Franchise Tax Board and Shaw can- 
not be reconciled with the Eighth Circuit’s decision in this case. 
The Court in Shaw did not qualify footnote 5 by saying that the 
Government must cast off the cloak only after passage of the 
1972 amendments to Title VII. Judge Arnold’s dissenting opi­
nion in the decision below addresses this point well:

Library o f  Congress v. Shaw, 106 S.Ct. 2957 (1986), a case 
decided after the oral argument in this case, is emphasized 
in Judge Bowman’s well-argued opinion for the Court En 
Banc. Shaw holds that sovereign immunity bars an award 
of prejudgment interest in Title VII cases against agencies 
of ine leder"' government. If the Postal Service were an 
agency of the federal government in the same sense as the 
Library of Congress, Shaw would be in point, and I would 
be constrained to adopt the view taken by the Court. But 
the Postal Service is not a federal agency in this simple, un­
qualified sense. Since 1970 it has had a special status. 
“ Congress . . .indicated [in the Postal Reorganization Act



10 —

of 1970] that it wished the Postal Service to be run more 
like a business than had its predecessor, the Post Office 
Department.” Franchise Tax Board o f California v. 
United States Postal Service, supra, 104 S.Ct. at 2553-54 
(footnote omitted).

As the Court recognizes, ante p.7, the Shaw opinion con­
tains a qualification. It states that ” [t]he no-interest rule is 
. . . inapplicable where the Government has cast off the 
cloak of sovereignty and assumed the status of a private 
commercial enterprise.” 106 S.Ct. at 2963 n.5. Has the 
Postal Service assumed the status of the sort of ‘‘private 
commercial enterprise” the Supreme Court had in mind? 
Obviously there are respects, and important ones, in which 
the Postal Service is unlike a private employer. But 1 do 
not believe that sovereign immunity with regard to an or­
dinary incident of relief in a civil action is one of those dif­
ferences. The Supreme Court in Franchise Tax Board, a 
unanimous opinion decided just two years before Shaw, 
and not referred to at all by the Shaw court, specifically 
stated that sue and be sued clauses are to be liberally con­
strued and that ‘‘we must presume that the [Postal] Ser­
vice’s liability is the same as that of any other business.” 
104 S.Ct. at 2554. It seems, then, that the Court considers 
the Postal Service to be like a private commercial enter­
prise for purposes of sovereign immunity.

Loeffler v. Carlin, _ _ _  F.2d.___ (8th Cir. En Banc 1987) (Ar­
nold, J. dissenting) (A-10,11).

The court’s decision below denies prospective effect to the 
“ sue and be sued” clause for a normal element of damages, in­
terest, in causes of action which became applicable to the Postal 
Service after its genesis. According to this reasoning, Congress 
would have to expressly state in each new piece of legislation 
that interest is available against identified federal instrumen­
talities which, by acts of Congress, have assumed the status of 
private commercial enterprise. In effect, the court below has

undercut the presumption against inferred restrictions to broad
waivcij r r _.vcrtigii immunity.

The decision also damages the well-settled presumption that 
the words “ to sue and be sued” embrace all well-known 
remedies available to suitors, including interest. Standard Oil 
Co. v. United States, 267 U.S. 76, 79 (1975)5 If left to stand, the 
decision will endanger well-established principles set by this 
Court to guide lower federal courts in measuring the scope of 
broad waivers of sovereign immunity.

III. The Public Interest Is Best Served By Allowing Pre­
judgment Interest Against The Postal Service Under 
Title VII.

The number of reported Title VII cases against the Postal Ser­
vice is indeed great.1 * * 4 Requiring the Postal Service to pay pre- 
judgment interest would encourage prompt settlement of 
meritorius cases. The Service fired Loeffler illegally from his 
position as a rural carrier in December of 1979. He lost the use 
of over Ninety-Thousand Dollars in his earnings for more than 
five years. The Postal Service was unjustly enriched with the i 
use of his back pay, lessening its incentive to carefully evaluate 
the wisdom of pursuing the merits of this case all the way 
through to appeal. (See Appendix, p. A-12)

1 This Court recently characterized prejudgment interest as “ an ele­
ment of complete compensation.” West Virginia v. United States, 479
U.S____ _ 93 L.Ed. 2d 639 at 646. 107 S. Q ____ _ (Jan. 1987).

4 106 cases against the Postal Service were reported in a Westlaw 
search of Allfeds: TITLE (“Postal Service” “Postmaster General”) 
and (“Title VIl”/s “Civil Rights Act”) (“42 U.S.C. **” + 5 2000(e))

61 cases were reported in a similar search: TITLE (“Postal Service” 
“Postmaster General”) & DIGEST, SYNOPSIS ((“Title VII”/s Civil 
Rights Act”) (“42 U.S.C. **” + 5 2000(e))



— 12 —

The public interest would be well served by imposing on 
managers of the Postal Service the same economic risks that are 
faced by private commercial enterprises. This was the intent of 
Congress in passing the Postal Reorganization Act. Absent the 
risk of incurring interest, the Postal Service will be more inclin- 
e to litigate, appeal and relitigate meritorious cases. With an 
ever-burgeoning caseload in the federal courts, relieving the 
Postal Service of the need to consider prejudgment interest only 
increases the likelihood of more needless litigation. Clearly, 
Congress could not have intended this result when it authorized 
the Service to “ sue or be sued” .

CONCLUSION

For the foregoing reasons, this Petition for a Writ of Cer­
tiorari should be granted.

Respectfully submitted,

Lisa S. Van Amburg 
Schuchat, Cook & Werner 
1221 Locust - Suite 250 
St. Louis, Missouri 63103 
Counsel for Petitioner

March 5, 1987

APPENDIX



APPENDIX A

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

Nos. 84-2553, 84-2574

Theodore J. Loeffler, 
Appellee/Cross-Appellant, 

v.
Preston R. Tisch,* Postmaster 
General of the United States, 

Appellant/Cross-Appellee.

Submitted: May 15, 1986 

Filed: December 8, 1986

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit 
Judge, HEANEY, ROSS, McMILLIAN, ARNOLD, 
JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, 
and MAGILL, Circuit Judges, en banc.

BOWMAN, Circuit Judge.

* Preston R. Tisch, successor in office to Paul N. Carlin, the 
original named appellant/cross-appellee, has been substituted as a 
party under Fed. R. App. P. 43(c)(1).



— A-2 —

This is a Title VII case brought against the Postmaster 
General of the United States in his capacity as head of the 
United States Postal Service. The plaintiff, Theodore J. Loef- 
fler, complained that he had been fired because of his sex. He 
has prevailed on the merits. The question presented is whether 
prejudgment interest can be awarded as an element of the relief. 
We hold that it cannot be.

This issue first came before us in Cross v. United States 
Postal Service, 733 F.2d 1327 (8th Cir. 1984). There, a panel of 
this Court held, with Judge Arnold dissenting, that sovereign 
immunity bars an award of prejudgment interest in actions 
against the Postal Service under Title VII. Thereafter, rehear­
ing en banc was granted, thus vacating the panel opinion. On 
rehearing, the judges of this Court were evenly divided. 733 
F.2d 1332 (8th Cir. 1984), cert, denied, 105 S. Ct. 1750 (1985). 
As a result, the judgment of the District Court in Cross’s case, 
holding prejudgment interest unavailable, was affirmed, but 
our decision had no precedential effect. The issue was left open 
for future determination in someone else’s case, either by 
another panel or by the Court en banc. Decisions by an equally 
divided court decide only the particular case. They have res 
judicata, but not stare decisis, effect.

The issue next came before a panel in the present case. The 
panel held, as the Cross panel had, that prejudgment interest 
could not be awarded. Loeffler v. Carlin, 780 F.2d 1365 (8th 
Cir. 1985). The Court again granted rehearing en banc. On 
rehearing, we find the reasoning of the Cross panel persuasive, 
and we adopt the substance of the opinion of that panel.

Our conclusion is strongly reinforced by the recent decision 
of the Supreme Court in Library o f Congress v. Shaw, 106 S. 
Ct. 2957 (1986), holding that Congress, in enacting Title VII, 
did not waive the Government’s immunity from interest. The 
reasoning of Shaw is quite instructive. The Court’s opinion, 
written by Justice Blackmun, forcefully expresses the long-

— A-3 —

established rule that absent express congressional consent, in­
terest cannot be awarded against the Government.

In the absence of express congressional consent to the 
award of interest separate from a general waiver of im­
munity to suit, the United States is immune from an in­
terest award. This requirement of a separate waiver 
reflects the historical view that interest is an element of 
damages separate from damages on the substantive claim.

Id. at 2961. The Court emphasizes “ the rule that interest can­
not be recovered unless the award of interest was affirmatively 
and separately contemplated by Congress.” Id. at 2962. Rejec­
ting Shaw’s argument that Congress waived the Government’s 
immunity from interest in Title VII actions by making the 
United States liable “ the same as a private person” for “ costs,” 
including “ a reasonable attorney’s fee,” 42 U.S.C. § 
2000e-5(k), the Court noted that “ we must construe waivers 
JiilvU; fdV wf Lhe sovereign and not enlarge the waiver 
‘beyond what the language requires.’ ” Id. at 2963. The Court 
further noted that “ (t]he no-interest rule provides an added 
gloss of strictness upon these usual rules.” Id.

In addition, the Court specifically disagreed with Shaw’s 
claim that Congress, by equating the liability of the United 
States with that of a private party, waived the Government’s im­
munity from interest. The Court reasoned as follows:

It was not until 1972 that Congress waived the Govern­
ment’s immunity under Title VII as a defendant, affording 
federal employees a right of action against the Government 
for its discriminatory acts as an employer. See § 717, 42 
U.S.C. § 2000e- 16(d). That § 706(k) already contained 
language equating the liability of the United States (as a 
plaintiff] for attorney’s fees to that of a private person 
does not represent the requisite affirmative congressional 
choice to waive the no-interest rule. . . .

Id. at 2964.



— A-4

The reasoning of the Court in Shaw is fully applicable to the 
present case. In the Postal Reorganization Act of 1970, Con­
gress provided that the postal Service may “ sue and be sued in 
its official name.” 39 U.S.C. § 401(1). That act, however, did 
not authorize Title VII actions against the Postal Service. In­
stead, such authorization did not come until 1972, when Con­
gress amended Title VII and extended it for the first time to the 
Postal Service and other federal entities. See 42 U.S.C. § 
2000e-16. As Shaw establishes, this extension of Title VII to the 
federal sector did not waive the immunity of these federal en­
tities with respect to interest.

Nor does the sue-and-be-sued clause of the Postal 
Reorganization Act provide congressional authorization for 
awarding interest in Title VII actions against the Postal Service. 
In the first place, for reasons discussed in the panel opinion in 
Cross, we are convinced that Congress did not intend to place 
postal employees in a better position than all other federal 
employees with respect to interest in Title VII cases. See Cross, 
733 F.2d at 1330. Moreover, we believe the case is governed by 
a fundamental principle: that a sue-and-be-sued clause does not 
expand the obligations of a federal entity in a suit brought pur­
suant to another statute that is itself a waiver of immunity and 
which constitutes an exclusive remedy. Loeffler’s action was 
not brought under the sue-and-be-sued clause of the Postal 
Reorganization Act. Instead it was brought under Title VII as 
amended in 1972. As required by Title VII, the defendant in 
Loeffier’s action is the Postmaster General, not the Postal Ser­
vice in its official name. There can be no doubt that the 1972 
amendments to Title VII created “ an exclusive, pre-emptive ad­
ministrative and judicial scheme for the redress of federal 
employment discrimination.” Brown v. General Services A d­
ministration, 425 U.S. 820, 829 (1976). Thus it is apparent that 
the sue-and-be-sued clause of the Postal Reorganization Act has 
no bearing upon the present case, and that the scope of Loef- 
fler’s remedy must be determined by reference to Title VII, just 
as in the case of any other federal agency.

/A" J

It is noteworthy that in both Federal Housing Administration 
v. Burr, 309 U.S. 242 (1940), and Franchise Tax Board v. 
United States Postal Service, 467 U.S. 512 (1984), sue-and-be- 
sued clauses are discussed in terms of amenability to process. 
On the other hand, interest is an aspect of damages. Thus, in­
terest is relevant to remedy rather than to amenability to pro­
cess. See Shaw, 106 S. Ct. 2957. Yet in the present case, the 
sue-and-be-sued clause does not even make the Postal Service 
amenable to process. Instead, the Postal Service is amenable to 
process in a Title VII case only under the federal sector provi­
sions of Title VII. It follows that the scope of Loeffier’s remedy 
must be determined by reference to the federal sector provisions 
of Title VII, and not be reference to the sue-and-be-sued clause 
of the Postal Reorganization Act.

The foregoing discussion exposes the fundamental flaw in the 
reasoning of Nagy v. United States Postal Service, 773 F.2d 
1190 (11th Cir. 1985), holding the Postal Service liable for in­
terest on a Title VII back pay award. In Nagy, the court starts 
with the premise that the Postal Reorganization Act presump­
tively waived the Postal Service’s immunity for all purposes, in­
cluding Title VII. That premise, however, is completely invalid, 
because in enacting the Postal Reorganization Act Congress 
specifically rejected the idea of making the Postal Service liable 
under Title VII as a private employer. See Cross, 733 F.2d at 
1330. Until Congress some two years after passing the Postal 
Reorganization Act amended Title VII to extend it to the federal 
sector with additional provisions applicable only to that sector, 
there had been no congressional waiver, presumptive or other­
wise, of the Postal Service’s immunity to Title VII actions. 
Thus, with all respect, we cannot agree that the Nagy opinion 
reached a correct result.1

1 The other post-Cross court of appeals decision awarding interest 
against the Postal Service in an employment discrimination case, Hall 
v. Bolger, 768 F.2d 1148 (9th Cir. 1985), is not a Title VII case and 
therefore is not in point.



— A-6 —

The situation in the present case is closely analogous to that in 
cases arising under the Federal Tort Claims Act (FTCA), 28 
U.S.C. §§ 1346(b), 2671-2680. As this Court held in Peak v. 
Small Business Administration, 660 F.2d 375, 377 (8th Cir. 
1981), the FTCA is the exclusive remedy in tort actions against 
the Government, and this is so despite the statutory authority of 
any federal agency “ to sue and be sued in its own name.” See 28 
U.S.C. § 2679(a). Accordingly, tort actions against the Postal 
Service may not proceed under the sue-and-be-sued clause as if 
the Postal Service were a private company, but must proceed 
under the FTCA with all of that Act’s limitations on its waiver 
of sovereign immunity. See Insurance Co. o f North America v. 
United States Postal Service, 675 F.2d 756 (5th Cir. 1982) (per 
curiam); Contemporary Mission, Inc. v. United States Postal 
Service, 648 F.2d 97, 104-05 n.9 (2d Cir. 1981); Sportique 
Fashions, Inc. v. Sullivan, 597 F.2d 664, 665-66 n.2 (9th Cir. 
1979). Congress made the Postal Service subject to the FTCA, 
and therefore in a tort action the Postal Service is treated like 
any other federal agency.

Similarly, Congress has made the Postal Service subject to the 
federal sector provisions of Title VII. Like the FTCA, Title VII 
as extended by Congress to the federal sector constitutes a 
limited waiver of sovereign immunity and a comprehensive, ex­
clusive remedy for the kinds of injuries that are within its pur­
view. It follows that in a Title VII action, the Postal Service 
must be treated like any other federal agency. And as the 
Supreme Court has made clear in Shaw, federal agencies sued 
under Title VII are not subject to interest awards, since Con­
gress has not waived the Government’s sovereign immunity to 
interest awards in such actions.

In footnote 5 of the Shaw opinion, the Court stated that the 
requirement of an express waiver of sovereign immunity as to 
interest is “ inapplicable where the Government has cast off the 
cloak of sovereignty and assumed the status of a private com­
mercial enterprise. See, e.g., Standard Oil Co. v. United States,

— A-7 —

267 U.S. 76, 79 (1925).” 106 S. Ct. at 2963 n.5. In a sup­
plemental filing, Loeffler relies on this footnote and argues that 
the effect of the sue-and-be-sued clause of the Postal 
Reorganization Act is to remove the cloak of immunity from the 
Postal Service by conferring upon it the status of a private enter­
prise. This reliance on footnote 5 of the Shaw opinion is 
misplaced, however, for the simple reason that Congress never 
has conferred upon the Postal Service the status of a private 
enterprise for purposes of Title VII actions. To the contrary, 
Congress explicitly treated the Postal Service as a federal agency 
when it amended Title VII in 1972 to make the Postal Service 
onH other federal agencies amenable to suit under Title VII. 
This stands in sharp contrast to the sue-and-be-sued clause, 
which never has authorized Title VII actions against the Postal 
Service. Instead, as previously noted, Title VII actions against 
the Postal Service and other federal agencies can be brought on­
ly in accordance with the explicit and detailed federal sector pro­
visions of Title VII. Congress provided for attorneys’ fees and 
costs in such actions, but did not provide for interest, and we 
may presume that it made this choice with full awareness of the 
traditional rule that interest does not lie on awards against the 
Government absent an express provision to the contrary. In any 
event, because of the manner in which Congress extended Title 
VII to the Postal Service it is abundantly clear that for purposes 
of Title VII Congress has chosen to treat the Postal Service as a 
federal agency, not as a private enterprise.

Moreover, Loeffler’s private enterprise argument fails 
because it is clear the Postal Service’s legal relationship with its 
employees is predominantly that of a federal agency, not that of 
an ordinary business. For example, Postal Service employees 
are appointed under the postal career service, which is part of 
the federal civil service. 39 U.S.C. § 1001(b). Further, under 39 
U.S.C. § 1005, Postal Service employees specifically are subject 
to a number of other protective provisions applicable to all 
federal employees. As the panel opinion in Cross points out, 
the Postal Reorganization Act and its legislative history con­



— A-8 —

clusively establish that under that Act postal employees are to be 
treated in exactly the same way as other federal employees for 
equal employment opportunity purposes. 733 F.2d at 1330. It 
is, therefore, apparent that Congress has not relegated the 
Postal Service to private enterprise status insofar as many of the 
rights and remedies of its employees vis-a-vis the Service are 
concerned. It is also apparent that Congress did not intend to 
place postal employees in a better position than all other federal 
employees with respect to interest in Title VII cases.

Finally, we do not believe that Franchise Tax Board supports 
Loeffler’s position. In holding that the sue-and-be-sued clause 
of the Postal Reorganization Act rendered the Postal Service 
amenable to administrative process requiring it to withhold 
delinquent state income taxes from the wages of postal 
employees, the Supreme Court observed “ that waiver of 
sovereign immunity is accomplished not by ‘a ritualistice for­
mula’; rather intent to waive immunity and the scope of such a 
waiver can only be ascertained by reference to underlying con­
gressional policy.” 467 U.S. at 521 (citation omitted). When we 
examine congressional policy applicable to the present case, it 
becomes apparent that (1) the Postal Reorganization Act did 
not waive the immunity of the Postal Service from liability 
under Title VII; (2) the subsequent amendments of Title VII 
that extended it to the Postal Service and other federal sector 
defendants do not provide for interest on Title VII judgments 
against these defendants. In short, reference to congressional 
policy leads inexorably to the conclusion that Congress has not 
waived the immunity of the Postal Service from interest on Title 
VII awards.

The judgment of the District Court denying prejudgment in­
terest on Loeffler’s Title VII award is affirmed.

It is so ordered.

ARNOLD, Circuit Judge, with whom LAY, Chief Judge, 
HEANEY, McMILLIAN, and JOHN R. GIBSON, Cir­
cuit Judges join, dissenting.

— A-9 —

Today the Court holds that prejudgment interest can never be 
awarded to prevailing plaintiffs in Title VII actions against the 
United States Postal Service. It thus creates a square conflict 
with Nagy v. United States Postal Service, 773 F.2d 1190 (11th 
Cir. 1985), the only other appellate opinion directly in point.

For the reasons given in my dissenting opinion in Cross, 
supra, 733 F.2d at 1330, I respectfully dissent. 1 add a few 
words to address briefly certain post-Cross developments that 
fortify the conclusion I reached there.

The Eleventh Circuit has now held that the barrier of 
sovereign immunity was “ deliberately lifted by Congress when 
it created the Postal Service,” and that prejudgment interest on 
back-pay awards is therefore available. Nagy v. United States 
Postal Service, supra. Cf. Hall v. Bolger, 768 F.2d 1148 (9th 
Cir. 1985) (post-judgment interest on award of attorneys’ fees 
against Postal Service under 29 U.S.C. § 791, forbidding 
discrimination by reason of handicap, not barred by sovereign 
immunity). But cf. Frazier v. United States Postal Service, 790 
F.2d 873 (Fed. Cir. 1986) (per curiam) (Merit Systems Protec­
tion Board has no authority to award interest on back-pay 
award). Moreover, a recent decision of the Supreme Court ex­
plicitly states “ we must presume that the [Postal] Service’s 
liability is the same as that of any other business.” Franchise 
Tax Board o f Cal. v. United States Postal Service, 104 S. Ct. 
2549, 2553 (1984) (sovereign immunity no bar to state agency’s 
order commanding Postal Service to withhold delinquent taxes 
from employees’ wages).

Library o f  Congress v. Shaw, 106 S. Ct. 2957 (1986), a case 
decided after the oral argument in this case, is emphasized in 
Judge Bowman’s well-argued opinion for the Court en banc. 
Shaw holds that sovereign immunity bars an award of prejudg­
ment interest in Title VII cases against agencies of the federal 
government If th^ Postal Service were an agency of the federal 
government in the same sense as the Library of Congress, Shaw



— A-10 —

would be in point, and 1 would be constrained to adopt the view 
taken by the Court. But the Postal Service is not a federal agen­
cy in this simple, unqualified sense. Since 1970 it has had a 
special status. “ Congress . . . indicated [in the Postal 
Reorganization Act of 1970] that it wished the Postal Service to 
be run more like a business than had its predecessor, the Post 
Office Department.” Franchise Tax Board o f Cal. v. United 
States Postal Service, supra, 104 S. Ct. at 2553-54 (footnote 
omitted).

As the Court recognizes, ante p. 7, the Shaw opinion contains 
a qualification. It states that “ [t]he no-interest rule is . . . inap­
plicable where the Government has cast off the cloak of 
sovereignty and assumed the status of a private commercial 
enterprise.” 106 S. Ct. at 2963 n.5. Has the Postal Service 
assumed the status of the sort of “ private commercial enter­
prise” the Supreme Court had in mind? Obviously there are 
respects, and important ones, in which the Postal Service is 
unlike a private employer. But I do not believe that sovereign 
immunity with regard to an ordinary incident of relief in a civil 
action is one of those differences. The Supreme Court in Fran­
chise Tax Board, a unanimous opinion decided just two years 
before Shaw, and not referred to at all by the Shaw court, 
specifically stated that sue-and-be-sued clauses are to be liberal­
ly construed and that “ we must presume that the [Postal] Ser­
vice’s liability is the same as that of any other business.” 104 S. 
Ct. at 2554. It seems, then, that the Court considers the Postal 
Service to be like a private commercial enterprise for purposes 
of sovereign immunity.

Our Court’s pqsition comes down to this: when the Postal 
Reorganization Act was passed in 1970, creating the Postal Ser­
vice and subjecting it to a sue-and-be-sued clause, sovereign im­
munity was waived, but not so far as Title VII was concerned, 
because at that time Title VII did not apply to any federal in­
strumentality, including the Postal Service. Later, when Title 
VII did come into the federal-government-employment picture,

— A l l  — i

nothing was said in so many words about interest. Therefore 
immunity remains in effect to bar interest awards. I cannot 
claim that the Supreme Court’s Franchise Tax Board opinion 
conclusively rejects that position. But I do think that the opi­
nion is more naturally read to support my view. In addition to 
thp i tronm cnts  a lrea d y  advanced, I call attention especially to 
another statement in franchise Tax Board. After stating that 
“ [t]he nearly universal conclusion of the lower federal courts 
has been that the Postal Reorganization Act constitutes a waiver 
of sovereign immunity,” 104 S. Ct. at 2553 n.12, the Court cites 
a number of opinions with approval. One of them, see id. at 
2554 n.12, is Milner v. Bolger, 546 F. Supp. 375 (E.D. Cal. 
1982). Milner squarely holds that the general no-interest rule 
applicable to federal agencies sued under Title VII does not app­
ly to the Postal Service. The inclusion of Milner in a string cita­
tion in a footnote is of course not the equivalent of an une­
quivocal Supreme Court pronouncement. But it does lend addi­
tional support to my position.

For these reasons, I would hold that an award of prejudg­
ment interest against the Postal Service under Title VII is not 
barred by sovereign immunity.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

f



— A-12 —

APPENDIX B

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

No. 84-2553

Theodore J. Loeffler,
Appellee,

vs.
Paul N. Carlin, Postmaster General, 

United States Postal Service, 
Appellant.

No. 84-2574

Theodore J. Loeffler,
Appellant,

vs.
Paul N. Carlin, Postmaster General, 

United States Postal Service, 
Appellee.

Appeal from the United States District Court 
for the Eastern District of Missouri

Submitted: June 14, 1985 
Filed: December 30, 1985

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior 
Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

-  A-13 —

Theodore J. Loeffler sued the Postmaster General of the 
United States Postal Service (USPS) under Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., for 
discriminatory discharge on the basis of his sex. The District 
Court' found that plaintiff had established a prima facie case of 
sex discrimination and had proved by a preponderance of the 
evidence that defendant’s articulated reason for the discharge 
was mere pretext. Finding that Loeffler was entitled to 
reinstatement to his former position without loss of seniority, 
the District Court awarded him full back pay and benefits 
reduced by the amount of interim earnings from other employ­
ment, but denied prejudgment interest on the monetary award, j 
USPS appeals, challenging the sufficiency of the evidence sup­
porting the finding of unlawful discrimination. Loeffler cross­
appeals the denial of prejudgment interest on the monetary 
award. We affirm the judgment of the District Court.

jr
i.

Plaintiff Loeffler, a male rural carrier, had been employed by 
USPS in Chesterfield, Missouri, for approximately ten years. 
There were four other full-time rural carriers in the Chesterfield 
post office, two of whom were female. Loeffler’s discharge oc­
curred as a result of his method of organizing “ box-holder” 
mail prior to beginning his delivery route. Boxholder mail is 
third-class mail not bearing the name and address of postal 
patrons, but which is designated for delivery to the current resi­
dent or occupant at each rural mailbox. Prior to August 1979, 
rural carriers were oermitted to “case” their boxholder mail if 
they wished to do so. “ Casing” is a practice whereby the carrier 
inserts boxholder mail in each separation of his or her delivery 
case before leaving the post office work area to begin delivering 
the day’s mail. Each separation in the delivery case contains the

1 The Honorable H. Kenneth Wangelin, United States District 
Judge for the Eastern District of Missouri.



— A-14 —

mail destined for a particular rural mailbox. The alternative to 
casing is to leave the boxholder mail in bundles and to collate it 
with each postal patron’s other mail at the point of delivery, 
i.e., at each individual mailbox. All the rural mail carriers 
preferred casing boxholder mail, believing it to be the most effi­
cient, safe, and convenient method of delivery. A prohibition 
against the casing of boxholder mail was implemented in August 
1979 by USPS headquarters in Washington. Regional offices 
were directed to relay the instructions to local offices.2

The rule against casing was violated openly by Loeffier and 
the two female carriers. The other carriers complied with the 
rule and were not involved in any disciplinary action. Each of 
the rural carriers received approximately the same amount of 
boxholder mail, and violations of the rule by any of the carriers 
could be observed with equal opportunity by the supervisors. 
Loeffier and the two female carriers, Cathy Selz and Julie 
Wachter, committed violations with roughly the same frequen­
cy, and made no attempts to conceal their actions, which in all 
cases were performed in plain view of their supervisors.

Loeffier was caught violating the rule on four occasions, for 
which he received a seven-day suspension, two fourteen-day 
suspensions, and finally a letter of dismissal followed by a deci­
sion letter giving the effective date of the discharge. Selz was 
caught casing on at least three occasions, for which she received 
a letter Of warning, a seven-day suspension, and a threat of 
dismissal (upon which no action was taken when she was again 
observed casing). Wachter was observed violating the rule on 
numerous occasions; she received a verbal warning but no other 
form of discipline.

2 The rule against the casing of boxholder mail was enforced until 
March 1980, when once again the method of delivery was left to the 
discretion of the carrier.

— A-15 —
i

Loeffier filed an appeal of his discharge with the Merit 
Systems Protection Board (MSPB). After a hearing, the 
presiding official of the MSPB issued a decision affirming the 
discharge. Loeffier then filed an appeal with the Equal Employ­
ment Opportunity Commission (EEOC). The EEOC affirmed 
the MSPB findings.

Loeffier subsequently filed the present suit under Title VII in 
the District Court. Following a bench trial, the District Court 
found that Loeffier had established a prima facie case of 
disparate treatment based on sex. USPS introduced testimony 
that Loeffier’s admittedly harsher and more frequent punish­
ment and ultimate discharge resulted from the fact that he was 
observed violating the anti-casing rule more frequently. Making 
credibility determinations to resolve conflicting testimony, the 
court concluded that Loeffier had carried the burden of rebut­
ting the defendant’s articulated nondiscriminatory reason for 
the discharge. The evidence included a demonstration of the 
high visibility of “ cased” boxholder mail, the ample oppor­
tunities for the supervisors to observe violations of the rule 
against casing, the paternalistic attitude of one of the super­
visors toward employee Selz, and the fiagrancy of the violations 
by both Loeffier and the two female carriers, all of whom 
violated the rule at every opportunity. The preponderance of 
the evidence, as credited by the trial court, established that 
Loeffier was discharged for the same offense committed by two 
similarly situated women; that one of the women (Wachter) was 
not disciplined at all; that the other woman (Selz) received lesser 
penalties than those imposed upon Loeffier; and that USPS’s 
asserted justification for the disparate treatment accorded to 
Loeffier was pretextual.

II.

USPS contends that the District Court did not make the 
necessary finding that Loeffier was subjected to discriminatory 
treatment because of his sex, and argues further that the record



— A-16 —

will not support such a finding. We cannot agree with either 
contention.

The first argument is without merit. The District Court’s 
memorandum opinion and the trial record make ample 
reference to Loeffler’s sex as being the basis of the 
discriminatory treatment to which his supervisors subjected 
him. The court specifically found that the rule against casing 
was violated consistently by Loeffler and the two female car­
riers, and that their violations were so blatant that the rule 
became a joke. The court also found that in contrast to Loef­
fler, the two female carriers were either lightly disciplined or not 
disciplined at all for their violations of the casing rule, although 
each continued to case her boxholder mail and was observed by 
her superiors to be committing violations. A supervisor on at 
least one occasion jokingly commented to Wachter about her 
violations and took no disciplinary action. The court specifical­
ly found that Loeffler and the two female carriers all committed 
violations with roughly the same frequency, but that the two 
female employees were either not charged with violating the rule 
against casing or were administered substantially less discipline 
than Loeffler, notwithstanding their continued violations. The 
court further found that at least one of the supervisors was 
aware of the frequent violations by the women but intentionally 
overlooked them. In its conclusions of law, the District Court 
noted that while USPS had the right to discharge or otherwise 
discipline employees who refused to follow the rules, the 
method of discipline chosen must be applied equally to all 
violators, and that some violators may not be protected merely 
because of their gender. In view of these findings of fact and 
conclusions of law, it is plain that the District Court’s judgment 
in favor of Loeffler on his Title VII claim is premised on the 
court’s determination that Loeffler was the victim of imper­
missible gender-based discrimination.

As to the sufficiency of the evidence, USPS argues that the 
record does not show that Loeffler and the two female

— A-17 —

employees were similarly situated, since only Loeffler had a 
prior disciplinary record and was clearly insubordinate to his 
supervisors. It argues further that this continuing problem of 
insubordination was an alternative nondiscriminatory explana­
tion for the discharge which was not considered by the District 
Court.

We reject this argument. The nondiscriminatory reason that 
USPS articulated before the District Court was that Loeffler 
was the only person caught at such frequent violations, not that 
he was discharged for open defiance of his superiors and for his 
prior disciplinary record. New nondiscriminatory reasons for 
plaintiff’s discharge may not be articulated for the first time on 
appeal.

Thus the narrow question remaining is whether the record 
supports the District Court’s finding that Loeffler was im­
properly discriminated against on the basis of his sex. The 
District Court, applying the well-established standards set forth 
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 
(1973) and Texas Department o f  Community Affairs v. Bur- 
dine, 450 U.S. 248, 252-56 (1981), found that Loeffler had 
estaDnsn.^ a prim* *acie case of discriminatory discharge by 
showing that all the rural carriers were opposed to the “no cas­
ing” rule, that Loeffler and the two female carriers violated it 
openly at every opportunity, that management had equal op­
portunity to observe all violations of the rule, and finally, that 
Loeffler was ultimately discharged for his actions while neither 
of the two female employees received discipline of comparable 
severity, despite their admitted violations. While the defendant 
was able to articulate a legitimate, nondiscriminatory reason for 
the disparity in treatment — that plaintiff’s harsher treatment 
and discharge resulted from the fact that he was the only carrier 
caught frequently in the act of violating the rule and that 
punishment was meted out according to the number of viola­
tions observed — the trial court found that Loeffler had 
demonstrated that the articulated reason was mere pretext. In



— A-18 —

Tate v. Weyerhaeuser Co., 723 F.2d 598 (8th Cir. 1983), cert, 
denie, 105 S. Ct. 160 (1984), this Court stated that a plaintiff 
may show that the employer’s proffered reason for discharge 
was not the real reason “ by ‘persuading the court that a 
discriminatory reason more likely motivated the employer’ or 
by ‘showing that the employer’s proffered explanation is un­
worthy of credence.’ ” Id. at 603 (quoting Burdine, 450 U.S. at 
256). Stated otherwise, “ the district court must decide which 
party’s explanation of the employer’s motivation it believes.” 
United States Postal Service Board o f Governors v. Aikens, 460 
U.S. 711, 716 (1983). The District Court found that Loeffler’s 
explanation was more credible and that he had established that 
his discharge was in violation of Title VII.

A district court’s finding of discriminatory intent under the 
Green-Burdine standard “ is a factual finding that may be over­
turned on appeal only if it is clearly erroneous.” Anderson v. 
City o f  Bessemer City, 105 S. Ct. 1504, 1508 (1985) (citing 
Pullman-Standard v. Swint, 456 U.S. 273 (1982)). The Supreme 
Court in Anderson stated that the basic principle governing ap­
pellate review of a district court’s finding of discrimination is 
that “ ‘a finding is “ clearly erroneous” when although there is 
evidence to support it, the reviewing court on the entire evidence 
is left with the definite and firm conviction that a mistake has 
been committed.’ ” 105 S. Ct. at 1511 (quoting United States v. 
United States Gypsum Co., 333 U.S. 364, 395 (1948)). When 
the finding of discriminatory intent is based on the trial court’s 
assessment of the credibility of the witnesses, appellate courts 
must give even greater deference to the trial court’s finding, 
“ for only the trial judge can be aware of the variations in de­
meanor and tone of voice that bear so heavily on the listener’s 
understanding of and belief in what is said.” Anderson, 105 S. 
Ct. at 1512. See King v. Yellow Freight System, 523 F.2d 879, 
882 n. 7 (8th Cir. 1975).

In the present case, the District Court’s decision ultimately 
turned in its assessment of the credibility of the witnesses. View­

— A-19 —

ing the record as a whole, and giving appropriate deference to 
the District Court’s credibility determinations, we conclude that 
neither the ultimate finding that Loeffler’s discharge was an act 
of discrimination based on his sex, nor any of the court’s sub­
sidiary findings, is clearly erroneous. Accordingly, the judg­
ment in favor of Loeffier on his Title VII claim must be affirm­
ed.

III.

Loeffier contends that the District Court erred in denying 
prejudgment interest on his back pay award.

In Cross v. United States Postal Service, 733 F.2d 1327 (8th 
Cir.), a ff’d en banc by an equally divided court, 733 F.2d 1332 
(8th Cir. 1984), cert, denied, 105 S. Ct. 1750 (1985), this Court 
first considered whether prejudgment interest should be 
available in Title VII actions against USPS. The panel opinion 
of this Court, which affirmed the district court’s denial of pre­
judgment interest, was automatically vacated when the case 
went en banc. Our en banc order, however, affirmed, without 
opinion and by an equally divided court, the judgment of the 
district court denying prejudgment interest.

Loeffier relies here principally on Franchise Tax Board v. 
United States Postal Service, 104 S. Ct. 2549 (1984), a case 
decided by the Supreme Court after our panel decision but 
before our en banc decision in Cross. At the time of our en 
banc decision in Cross, we considered the implications of Fran­
chise Tax Board, which held that USPS is not immune from a 
state administrative process seeking to garnish the wages of its 
employees. That case did not address the issue of whether 
USPS is liable for prejudgment interest in a Title VII case. 
Thus, despite broad language in the Court’s opinion equating 
USPS with private employers, Franchise Tax Board did not 
decide the question presented here.



— A-20 —

In denying Loeffler’s claim for prejudgment interest, the 
District Court relied on our en banc affirmance of the trial 
court’s denial of prejudgment interest in Cross. We believe that 
this reliance is both understandable and proper, for Judge 
Wangelin, the District Judge in the present case, was also the 
District Judge in Cross. Although it may be true that our en 
banc order in Cross has little precedential value, it did affirm 
Judge Wangelin’s decision in that case, and in that sense it 
established the law for our circuit. We therefore believe that it 
would be inappropriate for our panel to do otherwise than to 
conclude that in the present case Judge Wangelin correctly 
relied upon Cross. If the question of prejudgment interest is to 
be reconsidered, it should be reconsidered by the Court en banc, 
not by a three-judge panel.5 Accordingly, we affirm the District 
Court’s denial of Loeffler’s request for prejudgment interest.

IV.

For the reasons stated above, we affirm the judgment of the 
District Court in favor of Loeffler on his Title VII claim, and we 
also affirm the judgment of the District Court denying 
Loeffier’s claim for prejudgment interest.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

5 We note that on October 21, 1985 the Eleventh Circuit became the 
first circuit to hold the USPS liable for prejudgment interest in a Title 
VII case. See Nagy v. United States Postal Service, 773 F.2d 1190 
(11th Cir. 1985). The decision rejects the position taken by our panel 
opinion in Cross that the 1972 amendments to Title VII, which extend­
ed Title VII to federal employers, including specifically the USPS, do 
not give USPS employees any greater rights than those given to 
employees of other federal employers covered by those amendments. 
If Cross can be said to represent the law of our circuit, then there is 
now a split between our circuit and the Eleventh Circuit.

— A-21 —

APPENDIX C

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION

No. 81-1121 C (D)

Theodore J. Loeffler, 
Plaintiff,

William Bolger, Postmaster General 
United States Postal Service, 

Defendant.

ORDER

(.riled Oct. 25, 1984)

This matter is before the Court sua sponte.

A determination of whether prejudgment interest will be 
awarded in this cause has been stayed pending the appeal of 
Cross v. United States Postal Service, et at., No. 77-613 C (D), 
which involved the same issue. The Eighth Circuit affirmed this 
Court’s decision that prejudgment interest should be denied.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s request for pre­
judgment interest be and is DENIED.

Dated this 25th day of October, 1984.
1

/s /  H. Kenneth Wangelin
United States District Judge

i

[
j
i
■I



APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION

No. 81-1121 C (D)

Theodore J. Loeffler,
Plaintiff,

vs.
William Bolger, Postmaster General 

United States Postal Service,
Defendant.

MEMORANDUM AND ORDER

(Filed Oct. 1, 1984)

This matter is before the Court upon plaintiff’s motion for 
Order entering award of monetary damages. By Order dated 
December 27, 1982, this Court awarded judgment in favor of 
plaintiff on his Title VII claim, but stayed ruling on damages 
pending additional submissions by the parties.

Upon consideration of further materials submitted by the 
parties, the Court hereby amends its Order dated December 27, 
1983 as follows.

AMENDED FINDINGS OF FACT

19. The amount of pay which plaintiff would have earned in 
his position as a rural carrier, had he not been terminated, is as 
follows:

— A-22 —

1980 $19,411.00
1981 $22,576.00
1982 $24,670.00
1983 $25,214.00
Total $91,871.00

-  A-23 -

20. Since the date of his termination, plaintiff has made a 
reasonable effort to obtain other employment. During that 
time period he worked cutting grass for a landscaper, cleaning 
out a warehouse, delivering telephone books, as a dispatcher, 
and in other odd jobs. In this employment he earned income as 
follows:

1980 $ 500.00
1981 $ 3,101.80
1982 $ 5,827.00
1983 $ 7,211.15
Total $16,639.95

21. Since the date of his termination, plaintiff incurred 
medical expenses which would have been covered by the Postal 
Service Health Insurance Program, had he not been terminated. 
These expenses total Two Hundred Sixty Two Dollars 
($262.00). No other expenses were incurred by plaintiff for 
medical treatment or for the cost of health insurance.

22. Since the date of his termination, plaintiff has purchased 
life insurance to replace insurance which would have been 
available to him had he not been terminated. The cost of that 
life insurance totalled Three Hundred Six Dollars and Fifty Six 
Cents ($306.56).

23. Had plaintiff not been terminated, he would have been 
entitled to participate in a retirement program whereby the 
Postal Service would contribute an amount equal to plaintiff’s 
own contribution. The Postal Service’s contribution would 
have been made directly to the fund.

AMENDED CONCLUSIONS OF LAW

The Court has previously held that plaintiff herein is entitled 
to reinstatement to this former position without loss of seniority 
and with full pay and benefits, and such reinstatement will be 
ordered. Differing views have been presented by the parties



— A-24 —

with respect to the amount of back wages and fringe benefits to 
which plaintiff is entitled.

Plaintiff is clearly entitled to the amount of pay he would 
have received had he not been terminated. Albermarle Paper 
Co. v. Moody, 422 U.S. 405, 421 (1975). The parties have sub­
mitted different estimates of the proper back pay. The primary 
difference, however, was in the proper amount for each in­
dividual year; the total amount was substantially the same. 
Upon consideration of the evidence presented, the Court con­
cludes that the proper award of back pay is Ninety One Thou­
sand Eight Hundred Seventy One Dollars ($91,871.00).

Plaintiff’s back pay award must be reduced by the amount of 
“ interim earnings or amounts earnable with reasonable 
diligence” by the plaintiff. 42 U.S.C. § 2000e-5(g).

Accordingly,

IT IS HEREBY ORDERED that plaintiff be and is AWARD­
ED back pay from the date of his termination to the date of his 
reinstatement decreased by the amount of income he has receiv­
ed in other employment; and

IT IS FURTHER ORDERED that plaintiff shall provide this 
Court with evidence regarding his back pay from the end of 
1983 to the date of his reinstatement decreased by his income 
from that period; and

IT IS FURTHER ORDERED that plaintiff be and is 
REINSTATED to his position as a rural carrier with full rights 
and benefits, without regard to the time during which he was 
discharged.

Dated this 28th day of September, 1984.

/%/ H. Kenneth Wangelin
United States District Judge

— A-25 —

APPENDIX E

IN THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 81-1121 C (D)

Theodore J. Loeffler,
Plaintiff,

vs.
William Bolger, Postmaster General,

United States Postal Service,
Defendant.

ORDER

(Filed Dec. 27, 1983)

In accordance with the Memorandum of this Court filed this 
date and incorporated herein,

IT IS HEREBY ORDERED that plaintiff Theodore J. Loef­
fler have judgment against defendant William Bolger on the 
complaint; and

IT IS FURTHER ORDERED that the parties shall submit 
additional findings in accordance with the accompanying 
Memorandum.

This Order shall not constitute a final Order for purposes of 
appeal.

Dated this 27th day of December, 1983.

/s /  H. Kenneth Wangelin
United States District Judge



— A-26 —

APPENDIX F

IN THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF MISSOURI 

EASTERN DIVISION

No. 81-1121 C (D)

Theodore J. Loeffler,
Plaintiff,

vs.
William Bolger, Postmaster General,

United States Postal Service,
Defendant.

MEMORANDUM

(Filed Dec. 27, 1983)

This matter is before the Court for a decision upon the merits 
following a two-day trial held December 8-9, 1982. Plaintiff 
seeks judgment on his amended complaint alleging that he was 
discharged from his position as a rural postal carrier solely 
because of his sex, in violation of Title VII of the Civil Rights 
Act of 1964. Plaintiff seeks reinstatement without loss of 
seniority, purging of his personnel files, and back wages with in­
terest.

After consideration of the testimony adduced at trial, the ex­
hibits introduced into evidence, the briefs of the parties and the 
applicable law, the Court hereby makes and enters the following 
findings of fact and conclusions of law. Any finding of fact 
equally applicable as a conclusion of law is hereby adopted as 
such and, conversely, any conclusion of law equally applicable 
as a finding of fact is hereby adopted as such.

Findings of Fact

1. Plaintiff herein Theodore J. Loeffler, is a male citizen of 
the United States, and resides within the Eastern District of

— A-27 —

Missouri. Defendant William Bolger is and was at all relevant 
times Postmaster General of the United Postal Service, 
(hereinafter Postal Service) which is an independent establish­
ment of the Executive Branch of the United States government.

2. For approximately ten years, plaintiff was employed by the 
Postal Service as a rural carrier at the Chesterfield, Missouri
Post Office.

3. On November 30, 1979, plaintiff was issued a letter from 
the Postal Service proposing to remove him from his position. 
Subsequently the Postal Service issued a decision letter dated 
December 21, 1979 advising him that his discharge was to be ef­
fective January 4, 1980. Plaintiff was involuntarily discharged 
from his position effective January 4, 1980.

4. On January 10, 1980, plaintiff filed an appeal from his 
discharge to the Merit Systems Protection Board (hereinafter 
MSPB), St. Louis field office. A hearing was held by the MSPB 
on February 13, 1980. On March 11, 1980, the presiding official 
of the MSPB issued his intitiai decision affirming the discharge. 
This decision became final on April 15, 1980.

5. On May 10, 1980, plaintiff appealed the denial of his sex j 
discrimination claim to the Equal Employment Opportunity 
Commission (E.E.O.C.), Office of Appeals and Review. On 
August 13, 1981, plaintiff received the final decision from the 
E.E.O.C. affirming the findings of the MSPB.

6. The E.E.O.C. decision advised plaintiff that he had a right 
to institute a civil action in the United States District Court 
within thirty days of receipt of the letter. Plaintiff subsequently 
filed his suit within the thirty-day time limit.

7. The termination of plaintiff’s employment arose as a result 
of his practice of casing boxholder mail prior to beginning his I 
delivery route. “ Boxholder” mail consists of third-class mail 
which does not bear the name and address of a particular postal | 
patron but which is provided to the carrier in a single bundle

I
|



— A-28

and is designated for delivery to each current resident or occu­
pant of a rural delivery mailbox. “ Casing” is the practice of in­
serting the boxholders in each separation of the delivery case in 
the post office work area prior to delivery, and then inserting 
the first or second class mail inside the boxholders so that the 
boxholders form a convenient sleeve for the rest of the pieces of 
mail and thus make delivery quicker and easier. The alternative 
to casing the boxholders is to carry them as separate bundles 
and insert them into each individual post box during delivery.

8. Prior to September 10, 1983, rural carriers at the Chester­
field Post Office were permitted to case their boxholders if they 
so desired.

9. Pursuant to Postal Bulletin No. 21202, dated August 9, 
1979 entitled “Annual/Special Count o f Mail on Rural Routes 
—Section II C, Casing o f  Mail by Carrier”, the rule regarding 
casing of mail was changed to read as follows:

For the mail count period, the method of handling or 
casing boxholder mail shall be as directed by management. 
However, carriers cannot be required to carry more than 
two sets of boxholders as separate bundles on any one day. 
If more than two sets of boxholders are available for 
delivery (see Part II. C. 2) on any one day, the carrier may 
either carry the additional sets as separate bundles or case 
the additional sets of boxholders. The procedure establish­
ed for the count period must be the same as that which will 
be followed the remainder of the year. Any changes to the 
existing practices must be presented to the carriers at the 
local conference conducted before the count (see part I. D. 
1 ).

10. A prohibition on the casing of mail was implemented by 
the Postal Service headquarters in Washington, D.C., which 
directed regional offices to disseminate the instructions. The St. 
Louis Management Sectional Center received the instruction 
from the Chicago Regional Office, and thereafter informed

— A-29 —

Robert Hunt (Officer in Charge of the Chesterfield Post Office) 
at a meeting in St. Louis on or about August 15, 1979. On or 
about August 16, 1979, Officer in Charge Hunt issued instruc­
tions to all rural carriers at the Chesterfield Post Office that ef- 
fVnivp VntPinber 10 1979, the rural carriers must handle the 
first two sets of boxnolders received for delivery on a given day 
as separate bundles, and that the carriers could not case the box- 
holders. The same instructions were repeated to all five rural 
carriers on September 10, 1979.

11. The rationale for the rule against casing boxholders was 
that it increased the carrier’s “ strap-out time” , which is the time 
spent in the Post Office removing the mail from the carrier’s 
case prior to delivery. The carriers preferred to case the box- 
holders because they thought it was faster, more efficient, and 
safer since it permitted less time to be spent at each mail box and 
prevented the need for loose bundles in the car.

12. On August 16, 1979, the rural carriers at the Chesterfield 
Post Office submitted to Robert Hunt a written statement in 
which the rural carriers offered to relinquish their right to pay 
for strap-out time on the condition that they once again be 
allowed to case boxholders. The management of the Chester­
field Post Office submitted these proposals to the St. Louis 
Management Sectional Center for consideration. St. Louis re­
jected the proposals.

13. At the Chesterfield Post Office, the Officer in Charge
(Postmaster) was Robert Hunt until October 10, 1983, and 
thereafter was Don Wallace. The Superintendent of Postal 
Operations at all relevant times was Firmin Voss and the 
Superintendent of Mails and Delivery at all relevant times was 
Hugh Bird. The Chesterfield Post Office from August through 
December, 1979 employed approximately fifty persons of whom l 
the following five were rural carriers: Theodore Loeffier
(male); George Price (male); Ken Hundeldt (male); Kathy Selz 
(female); and Julie Wachter (female).



— A-30 —

14. From September 10 through October 30, 1979, the rule 
against casing was violated consistently by Loeffler, Selz and 
Wachter. Violations were so blatant that the rule became a 
“ joke” among certain carriers.

15. Loeffler was caught violating the rule on four occasions. 
The first time he received a seven-day suspension effective 
September 20, 1979. The second time he received a fourteen- 
day suspension effective October 5, 1979. The third time he 
received a fourteen-day suspension effective November 5, 1979. 
After the fourth incident there was a meeting at which Wallace, 
Bird and Loeffler were present and at which Loeffler refused to 
follow the rule. Loeffler then received his dismissal letter dated 
November 30, 1979.

16. Kathy Selz was caught casing on at least three different 
occasions. The first time she received a letter of warning on or 
about September 11, 1979. The second time she received a 
seven-day suspension effective October 5, 1979. The third time 
she attended a meeting with Wallace and Bird on November 23, 
1979 at which she was instructed to comply with the rule or face 
dismissal. After the meeting she continued to case her box- 
holders and was at times observed by her superiors, but was not 
thereafter disciplined in any manner.

17. Julie Wachter was on numerous occasions observed by 
her superiors casing her boxholders. The first time she received 
a verbal warning. Thereafter she was not disciplined in any 
manner. On at least one occasion she was observed by Bird, 
who jokingly commented about her violations and took no ac­
tion.

18. The supervisors had equal opportunity to observe all 
violations of the rule against casing boxholders. Since all three 
carriers received approximately the same number of boxholders, 
and since they each cased all of the boxholders they received, 
they all committed violations with roughly the same frequency. 
Loeffler, however, was specifically observed and disciplined on

A-31 —

each occasion that he broke the rule after it went into effect. . 
The two female employees, by contrast, were either not found 
to be violating the rule, or were administered substantially less 
discipline than was Loeffler, despite their admitted continued 
violation. At least one of the supervisors, Bird, was aware of 
the frequent violations by the women but intentionally 
overlooked it.

|
Conclusions of Law

This Court has jurisdiction over the parties herein and has 
subject matter jurisdiction pursuant to 28 U.S.C. § 1343 and 42 
U.S.C. § 2000e-16.

This case arises out of plaintiff’s allegation that he was the 
victim of disparate treatment by the U.S. Postal Service. It is ! 
clear that defendant had the right to discharge or otherwise : 
discipline its employees if they refused to abide by the rules. 
However, it is also clear that whatever method of discipline is ; 
chosen by defendant must be applied fairly and equitably to all j 
violators, and that some violators may not be protected merely | 
because of their gender.

The allocation of hearings and the order, presentation and 
proof in a Title VII discriminatory treatment case is set forth in ' 
McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973). J 
Under that standard, plaintiff first has the burden of 
establishing by a preponderance of the evidence a prima facie 
case oi disparate wcdtment. Id. at 802. If plaintiff is successful, 
the burden then shifts to defendant to demonstrate a legitimate, 
non-discriminatory reason for its action. Id. at 802-03. Finally, 
plaintiff must prove by a preponderance of the evidence that the 
reasons shown by defendant were merely a pretext for an 
underlying discriminatory intent. Id. at 804. The ultimate j 
burden of persuasion, however, always remains with the plain­
tiff to prove his case by a preponderance of the evidence. Texas 
Dept, o f  Community Affairs v. Burdine, 450 U.S. 248, 256 
(1981).



♦

In a discriminatory discharge case, plaintiff can establish a 
prima facie case by showing that other persons similarly situated 
but of a different sex received treatment different than the 
plaintiff. Green v. Armstrong Rubber Co., 612 F.2d 967, 968 
(5th Cir.) cert, denied, 449 U.S. 879 (1980). In the present case, 
plaintiff has clearly made such a showing. All rural carriers 
were opposed to the ban on casing, and three of them violated it 
at every opportunity. Management was specifically put on 
notice that such blatant violations were occurring. Never­
theless, plaintiff received a total of five weeks of suspension and 
was ultimately terminated. Neither of the female employees 
received anything of comparable severity despite their admitted 
continued violations.

Defendant, however, has arguably shown a legitimate non- 
discriminatory reason for the disparity. He argues that plain­
tiff’s harsher and more frequent punishment resulted from the 
fact that plaintiff was the only person caught at such frequent 
violations. Defendant argues further that each carrier was 
punished comparably according to the number of violations 
observed by management.

The validity of defendant’s position turns primarily on the 
credibility of the witnesses presented. Defendant’s witnesses 
testified that they had no way of knowing when violations occur 
unless they actually observed them occuring, and that all viola­
tions which were observed were reported and punished. 
However, all three carriers were equally subject to supervision, 
and violations could be checked, if the supervisor so desired, 
merely by checking the contents of the case.

In contrast to defendant’s position is the consistent testimony 
of plaintiff’s witnesses that management observed violation by 
three of the carriers. Violations by Wachter were even joked 
about; she was told by Bird to continue casing if she desired, but 
that if she were caught that he (Bird) would disclaim any such 
instruction. In two limited cases, violations by Selz were con­
doned by Postmaster Wallace, even though the reasons

— A-32 —
-  A-33 —

presented by Selz, that of safety and efficiency, were the same 
cited by plaintiff as reasons for ignoring the rule. Judging the 
evidence as a whole, the Court finds it difficult to accept defen­
dant’s contention that all those who were “ caught” were 
treated the same. I

Even assuming the validity of defendant’s position that plain­
tiff just “ happened” to get caught more often, however, the 
Court finds there is ample showing that this argument is a mere 
pretext. Evidence points to a “ paternalistic” attitude that Bird 
had toward Selz. Plaintiff has shown that violations of the rule 
by any carrier could have been observed or suspected by check­
ing the contents of the case, by viewing the case from a distance, 
or by watching the speed at which the parcels were being 
deposited in the case, or by looking to see whether a separate \ 
bundle of boxholders was still present by the carrier’s position 
on the date it was received. If the rule were of sufficient impor­
tance to management to warrant the firing of a ten-year 
employee with a record of efficiency and good performance, 
and if defendant were truly interested in treating all violators of 
the rule in the same manner, certainly more than reacting to 
chance observations of violations would have been appropriate.

In short, the Court finds that plaintiff has carried his burden 
under the Green standard. Either defendant intentionally im­
posed considerably harsher punishment on plaintiff than on the 
female employees who violated the rule, or else they engaged in 
considerably closer scrutiny of plaintiff to detect his violations. 
Either way, defendant is guilty of discriminatory treatment.

In view of the above, the Court finds that defendant is guilty 
of discriminating against plaintiff in the course of his employ- j 
ment in violation of Title VII of the Civil Rights Act of 1964, j 
and that plaintiff is entitled to reinstatement and back wages, j 
However, plaintiff has failed to provide a listing of income 
received after his termination as instructed by the Court (see 
Transcript at 108). Accordingly, the Court will enter an Order 
on the issue of liability, but will defer ruling on appropriate jiif



— A-34 —

relief until the parties submit appropriate information upon 
which the Court can calculate damages.

Plaintiff will have fifteen (15) days from the date of this 
Memorandum to file additional submissions with regard to ap­
propriate damages, and defendant shall have ten (10) days 
thereafter to respond.

Dated this 27th day of December, 1983.

/%/ H. Kenneth Wangelin
United States District Judge

X
*7





Dated August 20, 1987

Respectfully submitted,

Lisa S. V an A mburg 
S chuchat, Cook & W erner 
1221 Locust St., Suite 250 
St. Louis, Missouri 63103 
314/621-2626
Attorneys for Petitioner