16‐3634‐cv
Kennedy v. Fed. Express Corp., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 5th day of October, two thousand
4 seventeen.
5
6 PRESENT: RAYMOND J. LOHIER, JR.,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 JED S. RAKOFF,
10 District Judge.*
11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12 LISA KENNEDY,
13
14 Plaintiff‐Appellant,
15
16 v. No. 16‐3634‐cv
17
18 FEDERAL EXPRESS CORPORATION, ALVIN
19 BEAL, AS AIDER AND ABETTOR,
20
21 Defendants‐Appellees.
22 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
23
* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New
York, sitting by designation.
1
2
3 FOR APPELLANT: LAWRENCE M. ORDWAY, JR., Bousquet
4 Holstein PLLC, Syracuse, NY.
5
6 FOR APPELLEES: WHITNEY K. FOGERTY, for Federal
7 Express Corporation, Memphis, TN.
8
9 Alvin Beal, pro se, Tigard, OR.
10
11 Appeal from a judgment of the United States District Court for the
12 Northern District of New York (Mae A. D’Agostino, Judge). UPON DUE
13 CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
14 that the judgment of the District Court is AFFIRMED in part and VACATED in
15 part, and the case is REMANDED for further proceedings.
16 Lisa Kennedy appeals from a judgment of the District Court (D’Agostino,
17 J.) granting summary judgment to Federal Express Corporation (“FedEx”). On
18 appeal, Kennedy argues that FedEx is not entitled to summary judgment under
19 the Faragher/Ellerth doctrine. See Faragher v. City of Boca Raton, 524 U.S. 775,
20 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764–65 (1998).
21 Kennedy also argues that genuine disputes of material fact preclude summary
22 judgment on her Title VII claims for sexual harassment, sex discrimination, and
23 retaliation. We assume the parties’ familiarity with the facts and record of the
2
1 prior proceedings, to which we refer only as necessary to explain our decision to
2 affirm in part and vacate in part.
3 Viewing the record in the light most favorable to Kennedy and drawing all
4 reasonable inferences in her favor, Fireman’s Fund Ins. Co. v. Great Am. Ins. Co.
5 of N.Y., 822 F.3d 620, 631 n.12 (2d Cir. 2016), we conclude that she has raised a
6 genuine dispute of material fact as to whether her supervisor, Alvin Beal,
7 engaged in quid pro quo harassment by making threats or promises that “linked
8 tangible job benefits to the acceptance or rejection of sexual advances,” Karibian
9 v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994). Kennedy testified that (1) Beal
10 told her “[y]ou take care of me, I’ll take care of you” in the context of Beal’s sexual
11 harassment and rape, and (2) Beal ordered her to come into the office on a Sunday
12 and raped her when they were alone, after he had already raped her the previous
13 month under similar circumstances. On this record, a reasonable jury could
14 conclude that Kennedy submitted to Beal’s sexual harassment because of a threat
15 of discipline or promise of “continued employment.” See Jin v. Metro. Life Ins.
16 Co., 310 F.3d 84, 97 (2d Cir. 2002). Such quid pro quo harassment, if proven at
17 trial, would constitute a tangible employment action and deprive FedEx of its
18 affirmative defense under Faragher/Ellerth. Id. at 92.
3
1 Because FedEx has not established its entitlement to the Faragher/Ellerth
2 defense as a matter of law, and because FedEx concedes for purposes of this
3 appeal that Beal’s conduct created a hostile work environment, we remand for
4 further proceedings on Kennedy’s claims for sexual harassment and sex
5 discrimination. With respect to Kennedy’s retaliation claim, we affirm for
6 substantially the reasons stated in the September 28, 2016 decision and order of
7 the District Court. See Kennedy v. Fed. Express Corp., No. 5:13‐CV‐1540, 2016
8 WL 5415774 (N.D.N.Y. Sept. 28, 2016).
9 We have considered Kennedy’s remaining arguments and conclude that
10 they are without merit. For the foregoing reasons, the judgment of the District
11 Court is AFFIRMED as to the retaliation claim and VACATED as to the sexual
12 harassment and sex discrimination claims, and the case is REMANDED for
13 further proceedings.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
4