A recent decision, Kennedy v. Federal Express Corp, 13-cv-1540, 2016 WL 5415774 (N.D.N.Y. Sept. 28, 2016), a sexual harassment case, illustrates that proving the existence of a hostile work environment is alone insufficient to prevail.
In this case, defendant conceded for purposes of its summary judgment motion that the alleged conduct of plaintiff’s supervisor created a hostile work environment.
That, however, did not end the inquiry. The court granted defendant’s motion for summary judgment based on the so-called “Faragher/Ellerth” affirmative defense, which has “two elements: that (1) ‘the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior,’ and (2) ‘the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
So why did plaintiff lose? The court explains:
[B]y waiting more than one year after the alleged harassment began, more than seven months after it progressed to inappropriate touching, and more than five months after the first incident of alleged rape to report any of this alleged conduct to FedEx, Plaintiff unreasonably failed to take advantage of the preventive and corrective opportunities provided by FedEx. As discussed, Plaintiff was a manager for FedEx for more than ten years. See Dkt. No. 58 at ¶ 6. She was trained multiple times on FedEx’s anti-harassment policies and it was her responsibility as a manager to enforce this policy. See id. at ¶¶ 7-16, 21, 41. Plaintiff knew by June of 2009 when the touching began that Beal’s conduct violated FedEx’s policy, and she knew that she had an obligation to report such violations. See id. at ¶ 32 (“Kennedy admits that having been a manager for over ten years, she knew Beal’s physical touching of her violated FedEx policy, knew that it was her responsibility as a manager to ensure that FedEx policies and procedures were followed, and knew that she had an obligation to report violations of FedEx policy”). The touching the Plaintiff described as occurring in June of 2009 and thereafter was not insignificant. Plaintiff claims that Beal squeezed her breasts, attempted to reach up her skirt, kissed her, and placed her hand on his genitals. See Dkt. No. 58 at ¶¶ 30-31. Plaintiff admits that Human Resources would have been required “to do something about it” if she reported the conduct. See id. at ¶ 37. Plaintiff admits that no one threatened her; and no one, including Beal, ever told her not to complain. See id. at ¶ 92.
As FedEx correctly notes, a failure to timely complain can amount to a complete failure to utilize complaint procedures in the absence of a “credible fear” regarding what might happen to the employee if the complaint is made. See Bennett v. Progressive Corp., 225 F. Supp. 2d 190, 209 (N.D.N.Y. 2002); Walton v. Johnson, 347 F.3d 1272, 1290 (11th Cir. 2003). Further, courts have found that a reporting delay of equal and even less magnitude is unreasonable as a matter of law. See Pinkerton v. Colorado Dep’t of Transportation, 563 F.3d 1052, 1063-64 (10th Cir. 2009) (holding that the approximately two month delay was unreasonable where the plaintiff received harassment training and knew the incidents should have been reported); Thornton v. Federal Express Corp., 530 F.3d 451, 457 (6th Cir. 2008) (finding that the two month delay in report sexual harassment was unreasonable); Jackson v. County of Racine, 474 F.3d 493, 502 (7th Cir. 2007) (finding four month delay unreasonable); Baldwin, 480 F.3d 1287, 1306-07 (11th Cir. 2007) (finding delay of three months and two weeks unreasonable). Here, Plaintiff failed to report continually escalating conduct and, when asked why, she testified that she “didn’t want to be judged,” “didn’t want to have an investigation,” “didn’t want to deal with it,” was “embarrassed” because she knew that Accorso “would be obligated to do something about it” and she did not want to have to tell “everything that was going on.” Dkt. No. 58 at ¶¶ 32-33, 37, 39. The Court has no doubt that Beal’s conduct was emotionally and physically traumatizing and that Plaintiff was embarrassed to report the conduct. Such allegations, however, are insufficient to excuse her reporting delay. See Walton, 347 F.3d at 1290 (holding that severe harassment can be “particularly traumatic” but “the problem of workplace discrimination … cannot be [corrected] without the cooperation of victims”) (citations omitted). As the First Circuit has noted, “[r]eporting sexually offensive conduct by a supervisor would for many or most employees be uncomfortable, scary or both. But because this will often or ordinarily be true, as the Supreme Court certainly knew, its regime necessarily requires the employee in normal circumstances to make this painful effort if the employee wants to impose vicarious liability on the employer and collect damages under Title VII.” Reed v. MBNA Marketing Systems, Inc., 333 F.3d 27, 35 (1st Cir. 2003) (emphasis omitted).
*21 The Second Circuit has stated, “there are many reasons why a victimized employee may be reluctant to report acts of workplace harassment, but for that reluctance to preclude the employer’s affirmative defense, it must be based on apprehension of what the employer might do,” specifically, on a “credible fear that her complaint would not be taken seriously or that she would suffer some adverse employment action as a result of filing a complaint.” Caridad v. Metro-North Commuter R.R., 191 F.3d 2983 295 (2d Cir. 1999), overruled on other grounds by In re IPO, 471 F.3d 24 (2d Cir. 2006); see also Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 270 (4th Cir. 2001) (holding that a “nebulous fear” of retaliation is not an adequate basis for remaining silent). Plaintiff has not presented anything other than her own conclusory allegations as to why she remained silent for so long. Plaintiff’s own subjective fear, unsupported by any specific facts, are insufficient to create an issue of fact as to whether Plaintiff unreasonably failed to report the harassment.
The Faragher/Ellerth affirmative defense places a burden on both employers and employees to act responsibly and appropriately and the Supreme Court has noted that “[i]f the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.” Faragher, 524 U.S. at 807.
The Court notes that the defendant has the burden of proving its entitlement to the Faragher/Ellerth defense and summary judgment on this issue is only appropriate if “the evidence is so overwhelming that the jury could rationally reach no other result.” Fairbrother v. Morrison, 412 F.3d 39, 53 (2d Cir. 2005), abrogated in part on other grounds by Kessler v. Westchester Cnty. Dept. of Soc. Servs., 461 F.3d 199 (2d Cir. 2006). Resolving all ambiguities and drawing all inferences in Plaintiff’s favor, the Court finds that FedEx is entitled to summary judgment on this claim.