In Kennedy v. Federal Express Corp. and Alvin Beal, as Aider and Abettor, 2017 WL 4422514 (2d Cir. Oct. 5, 2017) (Summary Order), the Second Circuit (inter alia) vacated the district court’s judgmentKennedy v. Fed. Express Corp., No. 5:13-CV-1540, 2016 WL 5415774 (N.D.N.Y. Sept. 28, 2016) dismissing plaintiff’s sexual harassment and sex discrimination claims. (It also affirmed, without explanation or analysis and for substantially the same reasons as the district court, plaintiff’s retaliation claim.)
The court explained:
Viewing the record in the light most favorable to Kennedy and drawing all reasonable inferences in her favor, Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 822 F.3d 620, 631 n.12 (2d Cir. 2016), we conclude that she has raised a genuine dispute of material fact as to whether her supervisor, Alvin Beal, engaged in quid pro quo harassment by making threats or promises that “linked tangible job benefits to the acceptance or rejection of sexual advances,” Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994). Kennedy testified that (1) Beal told her “[y]ou take care of me, I’ll take care of you” in the context of Beal’s sexual harassment and rape, and (2) Beal ordered her to come into the office on a Sunday and raped her when they were alone, after he had already raped her the previous month under similar circumstances. On this record, a reasonable jury could conclude that Kennedy submitted to Beal’s sexual harassment because of a threat of discipline or promise of “continued employment.” See Jin v. Metro. Life Ins. Co., 310 F.3d 84, 97 (2d Cir. 2002). Such quid pro quo harassment, if proven at trial, would constitute a tangible employment action and deprive FedEx of its affirmative defense under Faragher/Ellerth.
Since “FedEx has not established its entitlement to the Faragher/Ellerth defense as a matter of law, and because FedEx concedes for purposes of this appeal that Beal’s conduct created a hostile work environment,” the court remanded plaintiff’s sexual harassment and sex discrimination claims for further proceedings.
|↩1||Kennedy v. Fed. Express Corp., No. 5:13-CV-1540, 2016 WL 5415774 (N.D.N.Y. Sept. 28, 2016|