Palmer v. Fed. Express Corp.
| Decision Date | 30 December 2016 |
| Docket Number | Civil Action No. 15–202 |
| Citation | 235 F.Supp.3d 702 |
| Parties | Jerae PALMER, Plaintiff, v. FEDERAL EXPRESS CORPORATION, also known as Fedex Express, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Mary Elizabeth Fischman, Pittsburgh, PA, for Plaintiff.
Ashley S. Patterson, Federal Express Corporation, Memphis, TN, Maria Cristina Sharp, FedEx Ground, Moon Township, PA, for Defendant.
For the reasons that follow, Defendant's Motion for Summary Judgment (Doc. 39) will be granted.
Jerae Palmer ("Palmer" or "Plaintiff") brings this lawsuit against Federal Express Corporation ("FedEx" or "Defendant"), under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, et seq. , the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a,1 and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. §§ 951–963, alleging discrimination because of sex, including termination and harassment, in violation of Title VII (Count I), (Doc. 1 at ¶¶ 15–33), and the PHRA2 (Count III), (Doc. 1 at ¶ 49), and alleging failure to reasonably accommodate and retaliatory termination for requesting a reasonable accommodation in violation of the ADA. (Count II). (Doc. 1 at ¶¶ 34–47).
Palmer worked as a courier at FedEx's AGCA station in the Three Rivers District from 2004 until her termination on March 31, 2011. (ASOF at ¶ 1).4 At the beginning of her employment with FedEx, she signed an employment agreement, which provides: "To the extent the law allows an employee to bring legal action against FedEx Express, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first." (ASOF at ¶ 2).
Plaintiff received review ratings on a seven point scale of 6.5 in 2007, 6.1 in 2008 and 5.6 in 2009, but did not receive any performance reviews after 2009. (PSOF at ¶ 43, 44).5 Plaintiff did, however, receive praise in the form of an online compliment on July 22, 2010, stating that she (PSOF at ¶ 32; Doc. 50–2 at 3).
During her employment with FedEx, Palmer was out on workers' compensation leave on several separate occasions due to work related injuries: from February 15, 2007 though April 3, 2007, due to frostbite(PSOF at ¶ 43); from January 28, 2009 through April 13, 2009, due to frostbite
(PSOF at ¶ 44); from May 3, 2010 through July 8, 2010, and from December 23, 2010 through March 3, 2011, due to a head injury (PSOF at ¶ 45).
FedEx has a policy entitled "Acceptable Conduct Policy" (hereinafter "conduct policy"). . The policy provides guidelines for conduct and identifies conduct subject to serious disciplinary action, up to and including termination. (ASOF at ¶ 4, 5); Doc. 41 Ex. A. The conduct policy also prohibits the use of violent, threatening, intimidating, coercing or abusive language or displaying blatant disrespect toward or about any employee. (ASOF at ¶ 5). Plaintiff read the policy to understand what was considered acceptable conduct. (ASOF at ¶ 6).
FedEx also has a policy entitled "Performance Improvement Policy" (hereinafter "performance policy"). (ASOF at ¶ 7). Under the performance policy, employees may be given documented counselings, performance reminders and warning letters. (Doc. 41 at 8, 9, 17, 19). FedEx refers to counseling notices as OLCCs. (ASOF at ¶ 8). As provided in the performance policy, "[a] documented counseling/OLCC entry is not disciplinary in nature, but it may be considered as a factor when determining whether discipline (i.e., Warning Letter, Performance Reminder, termination, etc.) is warranted." (Doc. 41, Ex. B at 117).
The performance policy further provides that:
Id . at 120. Thus, according to the policy, although termination normally results it is not mandatory for three notifications.
FedEx also has a procedure entitled "Guaranteed Fair Treatment Procedure/Internal EEO Complaint Process." (Doc. 41, Ex. C); (ASOF at ¶ 9). The Guaranteed Fair Treatment Procedure ("GFTP") is the internal procedure used by FedEx to handle employee complaints regarding discipline and other issues, which include application of compensation and benefit policies, terminations, performance review and work assignments presumed to be either unsafe or for which training has not been provided. (ASOF at ¶ 10). A complaint made through GFTP must be submitted electronically within five calendar days of the challenged event or occurrence. (ASOF at ¶ 10). The procedure states: "All complaints will be promptly and thoroughly investigated as a confidential a manner as possible." (Doc. 41, Ex. C at 338); (ASOF at ¶ 11).
If an employee believed that they have been subjected to discrimination, they could file an Internal Equal Employment Opportunity ("IEEO") Complaint. (ASOF at ¶ 11). Anytime Plaintiff expressed a "complaint" or complained of discrimination she was provided the appropriate paperwork for pursuing a formal IEEO complaint. (ASOF at ¶ 12; PSOF at ¶ 48). For example, Plaintiff was provided the appropriate EEO paperwork on five separate occasions: March 2005, when she informed management that she "felt" intimidated by a discussion from a fellow employee; October 2005 when she notified management about the use of profanity by fellow employees; October 2005 when she felt that "Rad" in dispatch treated her differently than "other employees," presumably males; May 2007 when she felt discriminated against on the distribution of hours; and August 2010 when she stated she felt she had a target on her back since her head injury
. (PSOF at ¶ 33–37, 47, 48); Doc. 50–2 at 6. At no time did she pursue the formal EEO complaint process. (ASOF at ¶ 12.)
Between February 22, 2010, and her termination date of March 31, 2011, FedEx issued three warning letters to Plaintiff: February 22, 2010 for unprofessional messages and behavior directed at the dispatch department, (ASOF at ¶ 13); July 9, 2010 for unacceptable actions and communications with a Safety Specialist, (ASOF at ¶ 14); and finally, March 31, 2011 for her conduct on or about March 23, 2011, yelling at another employee, calling him a "nebsh*t" and telling him "mind your damn business." (ASOF at ¶ 16). The Court will address the specific conduct leading to the warning letters more fully in its analysis.
On March 31, 2011, FedEx issued the third warning to Plaintiff by inter-office memorandum from Operations Manager Brian Stashak and copied to Senior Manager Jean Peluso and Human Resources Manager Bernice Boyden. (Doc. 44–1 at 27; Doc. 49 at ¶ 21). The third warning letter indicated the following:
Pursuant to FedEx's termination policy, termination decisions are made collectively by two levels of management and a human resources advisor. (ASOF at ¶ 20). Plaintiff does not dispute that she was terminated for receiving three disciplinary notices in a twelve month period. (ASOF at ¶ 19). It also is undisputed that numerous male employees in the Three Rivers District also had been terminated for receiving three disciplinary notices within a twelve month period. (ASOF at ¶ 22).
Plaintiff did not suffer any migraines from 2005, until she suffered a head injury
in April of 2010. (Doc. 49 at ¶ 24). Plaintiff testified that she had approximately 20 migraines a month at one point when she was not working, but after she returned to work the last time in March of 2011 that she "was down to only a couple" of migraines a month or "maybe one a week." (Doc. 38 at 9, 65–66). Her migraines did not cause her to miss work or school and she was able to engage in normal daily activities, such as bike riding, walking, and shopping. (Doc. 38 at 19, 66).
On September 28, 2011, Plaintiff went to the EEOC and filled out an intake questionnaire, and was directed to return on October 14, 2011. (PSOF at ¶¶ 29, 30). Plaintiff's "official" Charge of Discrimination was filed with the Equal Employment Opportunity Commission ("EEOC") on October 14, 2011, (ASOF at ¶ 26), wherein she lists the date of discrimination as November 20, 2010, at the earliest and March 31, 2011, at the latest (ASOF at ¶ 27; Doc. No. 44–2 at 39), but did not check the box indicate a continuing action. (ASOF at ¶ 27; Doc. 44–2 at 39). After receiving a right to sue letter, Plaintiff filed the instant action on February 15, 2015, almost four years after her termination. (See Doc. 1); (ASOF at ¶ 3).
Plaintiff incorrectly indicates that for purposes of the present motion for summary...
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