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.



        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.
    2
     The HONORABLE ROBERT G. RENNER, Senior United States District
Judge for the District of Minnesota.
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.

                                2
     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


    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.

                                3
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., 

, 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. 

.


     To prevail on a hostile        environment   cause   of   action,   a
plaintiff must establish that:


                                    4
     (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., 

, 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., 

, 564 (8th Cir. 1992)(citing Meritor Sav. Bank v.
Vinson, 

, 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., 

(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., 

, 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.




    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
          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., 

, 515 (8th Cir.)(quotation omitted), cert. denied, 

(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., 

, 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.

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., 

, 370 (1993)(quotation omitted).     Accordingly, the district
court did not clearly abuse its discretion when it refused to grant
Callanan's motion.


                                 6
     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, 

, 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]." 

(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

                                  7
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., 

, 155 (8th Cir.), cert. denied, 

(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., 

, 1103 (8th
Cir. 1988)(quoting Riordan v. Kempiners, 

, 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." 

. "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., 

, 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., 

, consisted largely of generalized, subjective

                                8
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. 

(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 

(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.


       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
Affirmed.


A true copy.


     Attest:


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




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