Kennedy v. Fed. Express Corp.
16-3634-cv
| 2d Cir. | Oct 5, 2017Background
- Plaintiff Lisa Kennedy worked for FedEx and alleged sexual harassment, rape, and discrimination by her supervisor, Alvin Beal.
- Kennedy testified Beal told her “you take care of me, I’ll take care of you” and raped her on two separate occasions, once after ordering her to come into the office on a Sunday.
- Kennedy sued FedEx for sexual harassment, sex discrimination, and retaliation under Title VII; FedEx moved for summary judgment.
- The district court granted summary judgment to FedEx; Kennedy appealed only the harassment, discrimination, and retaliation rulings.
- On appeal, FedEx conceded for purposes of the appeal that Beal’s conduct created a hostile work environment but argued it was entitled to the Faragher/Ellerth affirmative defense.
- The Second Circuit reviewed the record in Kennedy’s favor and considered whether Beal’s conduct constituted quid pro quo harassment that would defeat the Faragher/Ellerth defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether supervisor’s conduct was quid pro quo harassment (tangible employment action) | Kennedy: Beal’s threats/promises and rapes linked job benefits/continued employment to sexual submission | FedEx: Entitled to Faragher/Ellerth defense; supervisor’s actions did not amount to a tangible employment action that defeats the defense | Genuine dispute of material fact exists; plausible quid pro quo — Faragher/Ellerth defense not resolved for summary judgment (remand) |
| Whether hostile work environment exists | Kennedy: Supervisor’s conduct created hostile environment (conceded by FedEx for appeal) | FedEx: (conceded hostile environment for appeal) | Court accepted concession; remanded for further proceedings on harassment/discrimination claims |
| Whether summary judgment proper on sex discrimination claim | Kennedy: Discriminatory conduct tied to supervisor’s sexual harassment supports discrimination claim | FedEx: Argued no basis to hold employer liable as a matter of law | Vacated district court’s grant as to sex discrimination and remanded for further proceedings |
| Whether summary judgment proper on retaliation claim | Kennedy: Raised retaliation claim based on employer’s responses | FedEx: Sought summary judgment; district court granted | Affirmed: Second Circuit affirmed summary judgment for FedEx on retaliation (agreeing with district court) |
Key Cases Cited
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (establishes employer affirmative defense for supervisor harassment absent tangible employment action)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (companion to Faragher regarding employer liability and affirmative defense)
- Karibian v. Columbia Univ., 14 F.3d 773 (2d Cir. 1994) (defines quid pro quo harassment linking job benefits to sexual advances)
- Jin v. Metro. Life Ins. Co., 310 F.3d 84 (2d Cir. 2002) (quid pro quo harassment can constitute a tangible employment action depriving employer of Faragher/Ellerth defense)