Kennedy v. Fed. Express Corp.
| Decision Date | 28 September 2016 |
| Docket Number | 5:13-CV-1540 (MAD/ATB) |
| Parties | LISA KENNEDY, Plaintiff, v. FEDERAL EXPRESS CORPORATION and ALVIN BEAL, as Aider and Abettor, Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
BOUSQUET HOLSTEIN, PLLC
One Lincoln Center
110 West Fayette Street, Suite 900
Syracuse, New York 13202
Attorneys for Plaintiff
BOND, SCHOENECK & KING, PLLC
One Lincoln Center
110 West Fayette Street
Syracuse, New York 13202
Attorneys for Defendant Federal Express
JOHN L. VALENTINO, ESQ.
JOSHUA S. WERBECK, ESQ.
LAWRENCE M. ORDWAY, JR., ESQ.
KAVITHA JANARDHAN, ESQ.
LARRY P. MALFITANO, ESQ.
KERRY W. LANGAN, ESQ.
WHITNEY K. FOGERTY, ESQ.
THOMAS J. MURPHY, ESQ.
MEMORANDUM-DECISION AND ORDER
Plaintiff commenced this action on December 13, 2013, alleging disparate treatment based on her gender, hostile work environment and retaliation under 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York State Human Rights Law ("NYHRL"). See Dkt. No. 1. Currently before the Court is Defendant Federal Express Corporation's motion for summary judgment. See Dkt. No. 51.
Defendant Federal Express Corporation ("FedEx") is a transportation and delivery company that maintains certain policies that purport to prohibit discrimination, harassment and retaliation. See Dkt. No. 58 at ¶ 1. FedEx's Anti-Harassment Policy, which provides examples to illustrate the type of conduct that may constitute sexual harassment, directs employees to immediately report all allegations of discrimination or harassment through one of several avenues and advises employees that retaliation is prohibited. See id. at ¶ 2. Employees are advised in the policy that they can report allegations of harassment to any member of management, Human Resources, or FedEx's Human Resources Compliance Department in Memphis, Tennessee. See id. at ¶ 3. FedEx even maintains a toll-free alert line number that employees can call to lodge complaints, including anonymous complaints. See id. at ¶ 4.
According to the corporate policy, complaints of harassment and discrimination are investigated in accordance with FedEx's Guaranteed Fair Treatment Procedure/EEO Complaint Process. See id. at ¶ 5.1 This policy also identifies the individuals or departments to whomcomplaints of discrimination or harassment can be made, advises employees that a thorough investigation will be conducted and reaffirms that retaliation is prohibited. See id.
Plaintiff, Lisa Kennedy, is a former Operations Manager who was employed by FedEx from 1997 until her resignation in April 2010. See Dkt. No. 58 at ¶ 6. At the time of her hire, Plaintiff participated in a training program for management employees that covered employee-retaliation issues, general employment-related policies, computer systems, and general corporate policy. See Dkt. No. 51-1 at ¶ 7; Dkt. No. 58 at ¶ 7. In October 2006 and September 2007, Plaintiff received additional training in the area of employee relations for management. See Dkt. No. 58 at ¶ 8.
During her employment with FedEx, Plaintiff received multiple copies of FedEx's Employee Handbook, which contains a summary of FedEx's Anti-Harassment Policy and EEO Complaint Process. See id. at ¶ 9. A copy of the Handbook was always available to Plaintiff at the Station where she worked. See id. at ¶ 10. In addition to its Employee Handbook, FedEx publishes a People Manual, which contains full versions of FedEx's employment-related policies and procedures, including its Equal Employment Opportunity and Anti-Harassment Policies, as well as its EEO Complaint Process. See id. at ¶ 11. Like the Handbook, Plaintiff was aware of and had access to FedEx's People Manual throughout her employment. See id. at ¶ 12. Finally, FedEx's employment-related policies and procedures were available to Plaintiff at all times on FedEx's intranet. See id. at ¶ 13.
Plaintiff concedes that throughout her employment with FedEx, she had knowledge of FedEx's policies prohibiting discrimination, harassment and retaliation, as well as the procedures for reporting violations of policy, and that she received training on all of them. See id. at ¶ 14. In fact, it was part of Plaintiff's job responsibilities as a manager for FedEx to be familiar with these policies. See id. at ¶ 15. As a manager, Plaintiff had an obligation to immediately report any allegation of harassment or discrimination. See Dkt. No. 51-1 at ¶ 16; Dkt. No. 58 at ¶ 16.
When Plaintiff first applied for employment with FedEx, she executed an Employment Agreement as part of her application which contained terms and conditions of employment. See Dkt. No. 58 at ¶ 17. Specifically, the Employment Agreement contained a provision stating that, if Plaintiff wishes to bring legal action against FedEx, she is required to do so "'within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.'" Id. (). Plaintiff concedes that she read the Employment Agreement, understood its terms before signing and signed the Agreement voluntarily and without pressure. See id. at ¶ 18.
For the majority of her tenure at FedEx, including calendar years 2009 and 2010, Plaintiff worked out of FedEx's Syracuse Station. See id. at ¶ 19. As an Operations Manager, Plaintiff was responsible for supervising a team of employees that included package handlers and couriers. See id. at ¶ 20. She was also responsible for structuring delivery routes to ensure the efficient and timely delivery of packages by her couriers, scheduling, performing audit functions including time card and fuel audits, ensuring compliance with safety requirements, and coordinating ground and sort operations. See id. FedEx's Job Description for the Operations Manager position held byPlaintiff specifically lists "ensur[ing] all applicable company policies and procedures are followed" and "support[ing] corporate EEO/AAP goals and objections" as functions of the position. See Dkt. No. 51-1 at ¶ 21; Dkt. No. 58 at ¶ 21.
Plaintiff began reporting directly to Defendant Alvin Beal when he assumed the role of Senior Manager for the Syracuse and Watertown Stations beginning in mid-November 2008. See Dkt. No. 58 at ¶ 22. Like Plaintiff, Defendant Beal testified that he received training on FedEx's employment-related policies, including its Anti-Harassment Policy. See Dkt. No. 51-1 at ¶ 23; Dkt. No. 58 at ¶ 23. Defendant Beal participated in LEAD 2 training in July 2009, which is a week-long leadership class for management. See Dkt. No. 51-4 at ¶ 8; Dkt. No. 51-7 at 27-28. In 2007, Defendant Beal completed a diversity training course during which sexual harassment was discussed. See id. In June 2006, Defendant Beal completed an employee relations training class for management, as well as advanced employment law training. See id. Further, in 2005 and March of 2010, Defendant Beal attended sexual harassment awareness training for management. See Dkt. No. 51-4 at ¶ 8; Dkt. No. 51-7 at 28-30.2
Plaintiff alleges that Defendant Beal first began to harass her in January 2009 by asking if he could come over to her apartment to get to know her on a personal level. See Dkt. No. 58 at ¶ 26. Between January and March 2009, Plaintiff contends that Defendant Beal came to her apartment one night and engaged in a lengthy conversation about inter-racial dating; frequentlycalled her into his office for one-on-one meetings during which he would discuss his views on societal issues and continued to ask her if he could come over to her apartment. See id. at ¶ 27.
In March 2009, Plaintiff suffered a concussion while ice skating and was absent from work until early June 2009. See id. at ¶ 28. Plaintiff alleges that the harassment by Defendant Beal continued within a week of her return to work in June. See id. at ¶ 29. Plaintiff claims that, on an almost daily basis, Defendant Beal made comments such as "you smell nice today," called her into his office, locked the door, sat on the edge of his desk physically close to her and held lengthy meetings with her during which he discussed personal matters. See id.
According to Plaintiff, Defendant Beal's harassment escalated to physical touching in June of 2009. See id. at ¶ 30. Plaintiff claims that at least four or five times in June 2009, Defendant Beal squeezed her breast, attempted to reach up her shirt and kissed her, despite her protests, during closed-door meetings in his office. See id. Moreover, Plaintiff alleges that "the behavior continued into July 2009, every couple of days;" and on at least one occasion in July, Defendant Beal took Plaintiff's hand and placed it on his genitals. See id. at ¶ 31.
Plaintiff alleges that the physical touching and inappropriate meetings and comments continued into August 2009, every few days, culminating on Sunday, August 23, 2009, when she claims that Defendant Beal forced her to have sexual intercourse with him at the Syracuse Station. See Dkt. No. 58 at ¶ 34. According to Plaintiff, Defendant Beal continued to touch her inappropriately in September of 2009 despite her protests and, on September 27, 2009, Defendant Beal forced her to have sexual intercourse with him a second time. See Dkt. No. 58 at ¶ 38.
Plaintiff, having been a manager for more than ten years, knew that Defendant Beal's physical touching of her violated FedEx policy, knew that it was her...
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