Maldonado v. Federal Express CorporationResponse re Statement of Undisputed Facts in Support of Motion,D.V.I.May 17, 2019IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX NATACHA MALDONADO, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant. CIVIL NO. 2017/39 ACTION FOR DAMAGES JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF SUMMARY JUDGMENT Local Rule of Civil Procedure 56.1(b) permits a party opposing summary judgment to “demonstrate[e] that [a] fact is disputed”. 1. FedEx’s operations on St. Croix, USVI, is part of its Latin American Division. The 20 countries in the Caribbean operations are managed by Renaldo Medina, Managing Director. Attachment 1, 8/22/18, Dep. Of Ronaldo Medina, 7:5-24. Senior managers report to managing directors. One of the senior managers reporting to Medina is Kennel Mondesir who is responsible for the Bahamas, Turks and Caicos, and St. Croix. Attachment 2. 8/22/18 Dep. Of Kennel Mondesir, 9:10-17. RESPONSE: Undisputed for purpose of ruling on summary judgment. See LRCi 56.1(b). 2. Plaintiff Natacha Maldonado was hired by FedEx on January 23, 2006 in St. Croix, and terminated on August 26, 2016. Her last position with FedEx was Sr. Service Agent. Attachment 3, 5/16/18 Dep. Natacha Maldonado, 7:7-13, 152:15-21, Ex. 14, 180:23-24. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff was terminated by her Manager, Dean Camacho, on July 14, 2016. (Ex. 10 at 188-189; see also Ex. 26, Camacho Email, July 14, 2016). FedEx ratified his action and confirmed her termination on August 26, 2016. (Ex. 41, Pl’s Termination Letter). 3. From 2012 through 2016 Dean Camacho was Plaintiff’s immediate manager. 5/16/18 Maldonado Dep. 7:14-19. Camacho was the only FedEx management official on St. Croix. Id. 7:17-23. Camacho reported to Mondesir. Mondesir is based in the Bahamas, Plaintiff had a good relationship with him, and had his contact information. 5/16/18 Maldonado Dep. 40:24-41:14, 43:17-44:1. Mondesir reported to Medina who Plaintiff described as a “cool guy.” 5/16/18 Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 1 of 46 Page 2 Maldonado Dep. 42:1-20, 44:2-4. She had his contact information, including his phone number and email. Id. 42:7-12. RESPONSE: Disputed. See LRCi 56.1(b). The meaning of the word “relationship” is highly in dispute in this case. Ms. Maldonado accepted defense counsel’s characterization that her “relationship” with Mr. Mondesir was “good.” (Ex. 1 at 41). She believed Mr. Mondesir should be more present in St. Croix. (Ex. 10 at 6-7). Mr. Mondesir gave advanced notice of his visits; stayed only two days; was very good friends with Dean Camacho; and never spoke to employees individually. (Ex. 10 at 100; Ex. 6 at 44-47; Ex. 8, Dr. Fontes Depo at 235). Plaintiff attested she did not trust going to Mondesir to report Camacho because Mondesir and Camacho were good friends. (Ex. 10 at 100). Plaintiff believed that she met Mr. Medina, Managing Director for the Caribbean, months prior to her interview with Hulett on July 27, 2016, when he introduced himself to the St. Croix employees. (Ex. 10 at 8-9). Mr. Medina rarely came to St. Croix and admitted he met with Mr. Camacho, Manager of the St. Croix facility, only four times between 2010 and 2016. (Exhibit 15, Ronaldo Medina Depo, August 22, 2018, at 7, 11-12). Plaintiff admitted she could not reach out to either Mr. Mondesir or Medina to report Camacho because Camacho forbid the St. Croix employees to reach out to upper management or they were “going to be in problems.” (Ex. 10 at 100). 4. The workplace violence incidents and disruptions leading to Plaintiff’s termination occurred on July 12 and 14, 2016. 5/16/18 Maldonado Dep. 183:2-4. Plaintiff admits she threw a FedEx phone at Camacho, 5/16/18 Maldonado Dep. 83:12-22, 134:6-13. Plaintiff yelled profanities at Camacho, including, “Your fucking lying ass.” Id. 84:8-13, 134:21-25. She also admitted to security during an interview that she pushed Camacho. Id. 83:17-19. RESPONSE: Disputed. See LRCi 56.1(b). FedEx coerced Plaintiff’s “admissions” under false pretenses. (Ex. 1, Pl’s Depo I at 94-96; Ex. 10 at 215, 225; Ex. 44). First, FedEx misrepresented to Plaintiff that her Interviews with Vic Colon and Vanesa Hulett (Ex. 31 and 10), were in furtherance of FedEx’s investigation of Plaintiff’s IEEO complaint of discrimination, sexual harassment, retaliation and Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 2 of 46 Page 3 threats and that they expected her full cooperation. (Ex. 31 at 69-70; Ex. 10 at 211-213). Vic Colon never told Plaintiff he was there to investigate claims of workplace violence by Plaintiff. (Exhibit 31 at 6-7). Hulett never informed Plaintiff during the interview or phone calls, that FedEx was investigating Plaintiff for workplace violence. (Ex. 10 at 211-213, 222). Hulett asked Plaintiff to complete an Employee Information Form for her IEEO Complaint. (Exhibit 44, Pl’s Employee Information Form, July 27, 2016). Hulett informed Plaintiff that FedEx “initiated the EEO process” and “acknowledge receipt of your internal complaint of discrimination” and “a thorough investigation will be conducted, [t]hat’s why I’m here,” to “discuss your allegations. That’s what we are doing today,” and “Your cooperation is critical for a complete investigation,” and these are “serious allegations” of “discrimination, harassment, sexual harassment, retaliation.” (Ex. 10 at 211- 213). Hulett immediately followed up with leading questions to obtain admissions from Plaintiff that she violated company workplace violence policies. (Ex. 10 at 215-216). Hulett then told Plaintiff to write a Statement agreeing she had violated policies on workplace violence, timecards, and engaging in a relationship with her supervisor and failing to report it. (Exhibit 37, Plaintiff’s Statement to Hulett, July 27, 2016; Ex. 1 at 94-96). Plaintiff testified that she only wrote it because Hulett told her to as part of her sexual harassment complaint. (Ex. 1 at 95-96). Plaintiff did not have time to decide whether or not she wanted to write it and did not know “why I needed to write it,” as she was filing a complaint against Dean Camacho. (Ex. 1 at 95-96). Plaintiff worked for FedEx for ten years, but FedEx terminated Plaintiff by phone on August 26, 2016. (Ex. 50, Email from Kennel Mondesir to Vanesa Hulett dated August 26, 2016.) Plaintiff disputes that her actions on July 12th and 14th, 2016 willfully and intentional acts of workplace violence. Expert witness, Dr. Fontes, explained that Plaintiff’s throwing of the cell phone was “defensive aggression,” which occurs in coercive control situations when the victim tries to defend his or herself. (Ex. 8 at 227). Plaintiff threw the cell phone at the wall, not at anyone, where it fell, and the battery came out. The phone did not break. (Ex. 1 at 83-84, 108, 164; see also Ex. 10 at 127-128, 176). Plaintiff Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 3 of 46 Page 4 attested, “I did not intend to yell or curse at him. I did not intend to throw a cell phone at a wall. I did not want to do anything but have a nice normal work day free from Camacho interfering with me.” (Ex. 23 at 71-74). Plaintiff was distraught that Camacho was blocking her phone, which interfered with her ability to do her job. (Ex. 1 at 108; Ex. 10 at 174-175). Camacho was being “spiteful” toward her after she ended their involvement by using his authority as her manager. (Ex. 10 at 96-97). 5. On August 26, 2016, Mondesir terminated Plaintiff because she violated (1) FedEx’s workplace violence policy when she engaged in several verbal and physical altercations against Camacho; and (2) the personal relationship policy by having a consensual sexual relationship with her manager. 5/16/18 Maldonado Dep. 153:22-155:1, 156:3-5. See MSF ¶¶ 57, 61-63 below. RESPONSE: Disputed. See LRCi 56.1(b). FedEx suspended and terminated Plaintiff in retaliation for complaining on July 15, 2016, July 19, 2016 and July 27, 2016 about sexual abuse, sexual harassment and a hostile work environment perpetuated by its Manager, Dean Camacho, for over three and a half years. (Ex. 10 at 211-213, 215-216; Ex. 37.) Despite Plaintiff working for FedEx for ten years, FedEx terminated Plaintiff by phone on August 26, 2016. (Ex. 50, Email from Kennel Mondesir to Vanesa Hulett dated August 26, 2016.) Plaintiff complained of being raped by her manager at work, his sexual harassment in the workplace and outside work, and his retaliation in terminating her (Ex. 10 at 211-213), but FedEx disciplined her for “maintaining an intimate relationship” with her manager and failing to report it. (Ex. 41, Pl’s Termination Letter). Plaintiff’s termination letter states that she is being terminated for two reasons: 1) “[O]n July 12, 2016 and July 14, 2016, you engaged in verbal and physical altercations with your manager and supervisor,” [Dean Camacho] that constitutes “workplace violence”; and 2) “you engaged in and maintained an intimate relationship with your manager and direct supervisor [Dean Camacho] and failed to report it to upper management,” a “clear violation of US People Manual 4-50, Employment of Relatives and Significant Others.” (Ex. 41). The Termination Letter misrepresents that Plaintiff was suspended Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 4 of 46 Page 5 July 15, 2016 to investigate her violation of Acceptable Conduct policy, when Hulett gave Plaintiff the suspension letter on July 27, 2016 and told Plaintiff that FedEx was suspending her to protect her from having to go back to the workplace during the investigation. (Ex. 41; Ex. 36). The Termination Letter misrepresents that a “full investigation” was conducted into Plaintiff’s “workplace violence” conduct when Plaintiff was never informed that FedEx was investigating her for workplace violence. (Ex. 41). Further, FedEx’s Policy 4-50, revised June 1, 2016, “Employment of Relatives and Significant Others” does not require employees to report their “intimate relationship” to “upper management;” nor does it define who “upper management” is; and it does not warn that failure to report to “upper management” was a terminable offense. (Ex. 14, FedEx Policy 4-50). Plaintiff’s upper manager to whom she would report it would have been Dean Camacho, who was well aware of the “intimate relationship.” Camacho was terminated for his failure to report the relationship to his upper management. (Ex. 40). Further, Policy 4-50 states: “If two employees are found in conflict with this policy, one employee must find alternate employment, consistent with this policy, within 90 days.” (Ex. 14, FedEx Policy 4-50). FedEx terminated Camacho for his failure to report the “intimate relationship,” therefore Policy 4-50 no longer applied to Plaintiff. Further, FedEx’s legal counsel Grace Skertich attested under oath that FedEx had no plans to “issue discipline to Maldonado as a result of th[e] policy violation,” of engaging in a “relationship” with her manager pursuant to FedEx Policy 4-50, Close Personal Relationships. (See Def’s Attachment 6 at ¶ 11). Yet, FedEx’s Termination Letter to Plaintiff includes this exact false policy violation as a “reason” for terminating her. (Ex. 41). 6. On August 26, 2016, the same day Plaintiff was terminated, Mondesir terminated Camacho because he engaged in and maintained an intimate relationship with an employee under his direct supervision and failed to report it to upper management. 5/16/18 Maldonado Dep. 155:12-156:5, Ex. 15. See MSF ¶ 67 below. RESPONSE: Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 5 of 46 Page 6 Disputed. See LRCi 56.1(b). That was not the reason for Camacho’s termination. FedEx learned that Camacho had sexually harassed and abused Plaintiff for over three years. (Ex. 10, Interview with Hulett; Ex. 31, Interview with Colon). Camacho admits that he violated FedEx’s anti-sexual harassment policies. (Ex. 5, Camacho Depo at 93). FedEx’s reason for terminating Camacho was his admitted sexual harassment of Plaintiff. (Ex. 40, Camacho’s Termination Letter). 7. Vanesa Hulett is the Miami, Florida based human resources advisor assigned to St. Croix, and reports to Rene Garcia, who is based in Puerto Rico. Attachment 4, 6/12/18 Dep. Of Vanesa Hulett, 7:16-8:11. RESPONSE: Undisputed for purposes of summary judgment. See LRCi 56.1(b). 8. Hulett provided Plaintiff with human resources support from 2012 until her (Plaintiff’s) termination. 5/16/18 Maldonado Dep. 40:2-4. Plaintiff had a good working relationship with Hulett, who she trusted. Hulett’s number was posted along with her email address. At all times Plaintiff had Hulett’s contact information. Id. 40:5-23. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff did not testify that Hulett provided Human Resources “support” to her or to the employees in the St. Croix facility. (Ex. 1 at 40). In fact, no FedEx Human Resource personnel, including Hulett, ever visited the St. Croix facility except to investigate a complaint. (Ex. 11, Lopez-Virtue Depo at 66-67). FedEx Human Resources advisor Hulett did not check on the St. Croix station on a regular basis or even yearly; did not train the employees on any employment issues; did not check in with the employees via any remote type of device; did not initiate contact with the employees at the St. Croix outpost to check on the work environment; or follow up with the female employees after Charlotte Mitchell’s sexual harassment complaint against Camacho was made in 2012. (Id.). Admit that Plaintiff testified she had Hulett’s phone number and email address as it was posted. 9. In security, Vic Colon is a Miami, Florida based senior security specialist reporting to Lionel Garcia, Security Manager. Attachment 5, 6/13/18 Dep. of Victor Colon, 15:23-24, 18:12-14, 39:14-20, 102:12-17. Colon traveled to conduct an investigation into Plaintiff’s claims. Colon Dep. 41:1-4. Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 6 of 46 Page 7 RESPONSE: Disputed. See LRCi 56.1(b). Vic Colon admitted that he was asked to investigate solely a workplace violence incident in St. Croix. (Ex. 12, Colon Depo at 45, 90). His supervisor, Lionel Garcia, FedEx’s Security Manager, testified that Security does not investigate claims of harassment. (Exhibit 39, Lionel Garcia Depo at 87-88). Mr. Colon’s Report states at the top that it is about violation of FedEx’s Workplace Violence Policy (WVP), with no mention of FedEx’s policy against sexual harassment. (Exhibit 28 at 1). FedEx Security, Vic Colon, who was coming to interview Plaintiff, had no training in EEOC investigations, or in how to investigate a complaint of sexual harassment, and he was not sent to investigate Plaintiff’s report of sexual harassment. (Ex. 12 at 44, 46). Vic Colon’s supervisor, Lionel Garcia, testified he listened to Plaintiff’s recorded interview with Colon and agreed that Plaintiff asserted she was raped. (Ex. 39 at 77-78). Mr. Colon was disciplined by termination, for failing to put the word “rape” in his Security Report. (Ex. 12 at 23- 29). 10. FedEx’s anti-harassment policy and complaint procedures were posted in the breakroom from 2012 through 2016. 5/16/18 Maldonado Dep. 41:15-25. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff’s testimony refers to a Plaque about FedEx’s Guaranteed Fair Treatment Procedure (GFTP), posted at the St Croix facility. (Ex. 1 at 41). The Plaque does not apply to discrimination issues and does not inform employees how to report or complain about discrimination or sexual harassment. (Exhibit 13, St. Croix EEO Posting 003, GFTP Plaque; see also Exhibit 7, FedEx Employee Manual, Sec. 5-5 at p. 89 ). The Plaque describes how to appeal discipline, grievances or terminations, not address discrimination. (Ex. 13). In FedEx’s People Manual, Section 5-5 on the Guaranteed Fair Treatment Procedure, the “Issues eligible for consideration in the GFTP” do not include discrimination or sexual harassment. (Exhibit 30, FedEx’s People Manual, GFTP 5-5). FedEx did not post any information in its St. Croix station of Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 7 of 46 Page 8 how employees could file a complaint of sexual harassment with FedEx, nor has FedEx provided any evidence of such a posting. Further, victims of sexual harassment rarely report it for fear of not being believed, which Plaintiff feared. (Ex. 8, Fontes Depo at 167, 190). FedEx did not believe Plaintiff was sexually harassed. FedEx accepted Camacho’s denials of all events. Camacho’s lack of credibility was supported because he tried to falsely deny he was the father of the twins (Ex. 9, Mutidi Depo at 13-17; Ex. 38). 11. Plaintiff fully understood FedEx policies serving as a basis for her termination, and avenues by which she could have alerted FedEx of problems with Camacho. 5/16/18 Maldonado Dep. 73:1-6. In an April 10, 2016 text message to Camacho, Plaintiff threatened to report Camacho for sexual harassment. She says in the text message that at FedEx sexual harassment is “a big NONO.” Attachment 3-A, 8/15/18 Maldonado Dep. 81:17-82:8. Plaintiff knew at the time that FedEx’s sexual harassment policy but did not make any reports to FedEx of any alleged threats or harassment by Camacho. Id. 82:9-14. RESPONSE: Admit Plaintiff threatened to report Camacho for sexually harassment and he threatened her if she did. Disputed as to the remaining. See LRCi 56.1(b). Defendant asked Plaintiff only if she was “familiar” with the “acceptable conduct policy, GFT/Open Door, workplace violence, internal IEEO policy and harassment and sexual harassment policies” to which Plaintiff replied, “Yes.” (Ex. 1 at 73). Defendant did not have a clear policy on how an employee should report sexual harassment. Even if Ms. Maldonado understood the policies against sexual harassment, her FedEx manager and supervisor Camacho threatened to terminate Plaintiff if she reported him to FedEx. (Ex. 1 at 113- 114; Ex. 45 at 29). He texted her messages to this effect. (Ex. 42 at 53-54, 57, 60-61). Plaintiff testified, “That was his way of stopping me from reaching out to anybody.” (Ex. 10 at 87-88). Camacho also told Plaintiff if she reported the sexual harassment, no one would believe her, and everyone would believe him, which is exactly what occurred. (Ex. 1 at 113-114). FedEx accepted Camacho’s denials of all events. (Ex. 38). 12. On September 8, 2010, Plaintiff signed for and received a FedEx employee handbook, which she understood and did not find confusing or unclear. 5/16/18 Maldonado Dep. 91:22-93:11, Ex. 2, 94:5-18, Ex. 3, 180:25-181:2. The employee handbook receipt which she Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 8 of 46 Page 9 signed notified her, “The company provides the guaranteed fair treatment procedure, GFTP/EEO process to resolve employment disputes and problems quickly. Employees are therefore expected to use the GFTP to resolve all eligible work-related dispute. The open door process may be used to address other concerns.” Id. 93:8-25. FedEx’s employee handbook states “YOUR EMPLOYMENT IS AT-WILL.” 5/16/18 Maldonado Dep. Ex. 3, p. 2. FedEx’s written policies clearly state: “NO MANAGER OR REPRESENTATIVE OF THE COMPANY, OTHER THAN THE CEO OR SENIOR VICE PRESIDENT DESIGNATED BY THE CEO, HAS ANY AUTHORITY TO ENTER INTO ANY AGREEMENT MODIFYING THIS PUBLICATION IN ANY WAY, OR TO ENTER INTO AN AGREEMENT OF EMPLOYMENT WITH YOU FOR ANY SPECIFIED PERIOD OF TIME.” 5/16/18 Maldonado Dep. Ex. 2. RESPONSE: Disputed. See LRCi 56.1(b). Employees are not “at-will” pursuant to the Wrongful Discharge Act. (Ex. 49, FedEx Interviewer Notes.) 13. The employee handbook (1) spells out FedEx’s commitment to a discrimination and harassment free workplace; (2) warned Plaintiff that workplace violence will not be tolerated and identifies violent and unacceptable conduct (should an employee feel violated by a manager); (3) informed Plaintiff of the anti-harassment policy and defined harassing conduct; and (4) spelled out the tools by which Plaintiff could have Complained about Camacho’s conduct. 5/16/18 Maldonado Dep. Ex. 3, pp. 4, 34, 44-46, 48-49, 87-88. RESPONSE: Disputed. See LRCi 56.1(b). The Employee Handbook is a document only and cannot take the place of actual practices. (Ex. 7). FedEx did not practice the policies described and promised in its Employee Handbook. FedEx was notified in 2014 and 2015 that its St. Croix Manager, Dean Camacho, was engaging in sexual relationships with women on the job, and with Plaintiff, Natacha Maldonado. (Ex. 20, Bass Complaint1 at ¶13; Ex. 21, Bass Depo2 at 230). FedEx legal counsel and management did not report the complaint to Human Resources in violation of FedEx’s policy. (Ex. 7, FedEx Employee Handbook at 48-49). FedEx employee Charlotte Mitchell complained that Dean Camacho was sexually harassing her and gave numerous instances, including him asking her on a date and requiring her to go on check rides with him alone, as he also subsequently required Maldonado to do and raped her. FedEx did not investigate all of Mitchell’s allegations. (Ex. 18; Ex. 1 Joseph Bass v. Federal Express, Civ. No. 2014-SX-60 (age discrimination case in which Bass was terminated by Camacho). 2 Joseph Bass’s deposition was taken on July 2, 2015for Joseph Bass v. Federal Express, Civ. No. 2014-SX-60. Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 9 of 46 Page 10 17, Browne Depo at 83)(testifying that the only question she was asked during the alleged investigation was whether Camacho called Mitchell, by the name of the soap opera star, Erica Kane, which was confirmed). Camacho denied all other allegations, and FedEx unreasonably believed him over Mitchell. (Ex. 18). FedEx’s practices reveal a lack of commitment to a discrimination and harassment free workplace. Dr. Lisa Fontes, Plaintiff’s expert witness on sexual abuse and harassment, testified that FedEx should have been aware of the situation and “should have made it their business to be aware of what was happening at this outpost.” (Ex. 8, Dr. Fontes Depo at 230). Dr. Fontes opined: “[E]ven when a company has avenues available, if they don’t communicate to workers that they’re serious about eliminating sexual harassment, then workers don’t take advantage of those avenues.” (Ex. 8 at 164-165). 14. Plaintiff is familiar with the acceptable conduct, alert line complaint, open door, workplace violence, internal IEEO complaint, and sexual harassment policies. 5/16/18 Maldonado Dep. 9:15-21, 73:7-11. RESPONSE: Disputed. See LRCi 56.1(b). Dean Camacho threatened to have Plaintiff terminated if she reported his conduct to FedEx. (Ex. 1 at 113-114). Camacho texted her messages to this effect. (Ex. 42 at 53- 54, 57, 60-61). Plaintiff testified, “That was his way of stopping me from reaching out to anybody.” (Ex. 10 at 87-88). In fact, Camacho did terminate Plaintiff when she reached out to FedEx Human Resources Vanesa Hulett to report harassment on July 14, 2016. (Ex. 25, Ex. 26). Camacho’s practice at the St. Croix FedEx office was that employees were prohibited from going to Human Resources or calling Camacho’s direct supervisor to report or make any complaints because he told them that the “chain of command” and “proper protocol” was to go to him first since he was the Manager. (Ex. 10, Plaintiff’s Interview with FedEx’s Human Resources Advisor, Vanesa Hulett, July 27, 2016, at 100, 108-110; see also Ex. 21, Joseph Bass Depo at 84-85). Camacho told Plaintiff and the other employees if they went to higher-ups before him, “you’re going to be in problems.” (Ex. 10 at 100). Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 10 of 46 Page 11 15. FedEx provided Plaintiff with workplace violence training on August 26, 2006, January 3, 2013, March 12, 2014, and September 9, 2015. She received sexual harassment awareness training on June 14, 2010 and September 12, 2012 (one month before she first had sex with Camacho in October 2012). 5/16/18 Maldonado Dep. 84:14-17, 85:19-87:13, 87:24-89:5, Ex. 1, 90:13-24. RESPONSE: Undisputed for purposes of summary judgment only. See LRCi 56.1(b). 16. As to her sexual harassment training which she received (See MSF ¶15), Plaintiff testified: Q: [Douglas] And do you recall during the sexual harassment training courses that you can report sexual harassment, not just to your boss but to your boss’ boss? A: Yes. Q: Do you recall the training telling you that you can also report sexual harassment directly to Human Resources? A: Yes. 5/16/18 Maldonado Dep. 91:7-15. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff testified that Dean Camacho threatened to have her terminated if she reported his conduct to FedEx. (Ex. 1 at 113-114). “That was his way of stopping me from reaching out to anybody.” (Ex. 10 at 87-88). Camacho’s practice at the St. Croix FedEx office was that employees were prohibited from going to Human Resources or calling Camacho’s direct supervisor to report or make any complaints because he told them that the “chain of command” and “proper protocol” was to go to him first since he was the Manager. (Ex. 10, at 100, 108-110; Ex. 21, Joseph Bass Depo at 84-85). If the employees went to higher-ups before him, they would be in trouble. (Ex. 10 at 100). 17. Despite being familiar with important policies (See MSF ¶ 14), she did not use any of the internal tools available to her to complain about the relationship between her and Camacho. 5/16/18 Maldonado Dep. 73:12-15. Plaintiff never submitted an alert line, open door, or internal complaint of discrimination against Camacho. 5/16/18 Maldonado Dep. 9:22-10:5, Dep. 94:1-4. From September 2012 through 2016, Plaintiff never complained to anyone in writing, or verbally, that Camacho acted inappropriately. 5/16/18 Maldonado Dep. 8:24-14. RESPONSE: Disputed. See Responses to Nos. 14 and 16 above. 18. Throughout the three and a half year relationship with Camacho (MSF ¶¶ 34, 38), Plaintiff knew how to contact FedEx upper management but she did not. 8/15/18 Maldonado Dep. 78:25-79:6. In addition to having the work phone numbers of her human resources, senior manager, Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 11 of 46 Page 12 and managing directors, Plaintiff also had their mobile numbers, and according to Plaintiff, “everything was posted, yes.” 5/16/18 Maldonado Dep. 43:9-14. RESPONSE: Disputed. See LRCi 56.1(b). The word “relationship” is in dispute. During the three and a half years that Camacho sexually harassed Plaintiff in and outside the workplace, Camacho threatened to terminate Plaintiff if she reported him to FedEx. (Ex. 1 at 113-114; Ex. 45 at 29). He texted her messages to this effect. (Ex. 42 at 53-54, 57, 60-61). Plaintiff testified, “That was his way of stopping me from reaching out to anybody.” (Ex. 10 at 87-88). Camacho told Plaintiff if she reported the sexual harassment, no one would believe her, and everyone would believe him. (Ex. 1 at 113-114). From the beginning, Plaintiff told Camacho his advances were unwelcome. Camacho called Plaintiff in his private office and told her she was pretty and beautiful and would love to undress her and see her naked and that he was just letting her know how he felt from a man’s standpoint. (Ex 1, Pl’s Depo I at 46-47; see also Ex. 10, Pl’s Interview at 31-32). Ms. Maldonado told Camacho that his comments made her feel very uncomfortable and awkward and she asked him why he would he say things like that to her since he’s her Manager. (Ex 1 at 47; Ex. 10 at 31-32). Plaintiff rejected Camacho and told him not to make those kinds of comments to her and to keep them to himself. (Ex. 1 at 47). Again, Camacho begged Plaintiff not to report him or tell anyone. (Ex. 1 at 47; Ex. 10 at 32). And, Camacho did terminate Plaintiff when she contacted Human Resources, and FedEx did believe his denials over Plaintiff. (Ex. 25, Ex. 26; Ex. 38). There was no consensual relationship. Plaintiff had been working at FedEx’s front counter when Camacho became manager at FedEx’s St. Croix station. Camacho, after sexually assaulting her and coercing her into a sexual relationship, moved her to the back desk to do tracking and tracing because he did not want her interacting with male customers who came to do FedEx business. (Ex. 16 at 14, ¶ 1; see also Exhibit 23, Plaintiff’s Affidavit at 14-17). Camacho would get mad at Plaintiff and give her the “silent treatment” at work over matters unrelated to work. (Ex. 23, Pl’s Aff. at ¶¶ 26-29). He would assign other female employees to do her duties, so he did not have to Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 12 of 46 Page 13 speak to Plaintiff because of some fit of jealousy. (Ex. 23, Pl’s Aff at ¶ 27). Mr. Camacho controlled the uniform requests at FedEx. (Ex. 16 at 14). Camacho ordered Plaintiff to stop wearing her work uniform shorts, saying they were too revealing, and insisted she wear pants that were a size larger than her regular size, to cover up her body. He tried to make her wear skirts that were past her knees. She said, “My work pants were always an issue.” (Ex 16 at 14; Ex. 23, Plaintiff’s Affidavit at ¶ 5-9). Camacho controlled how Plaintiff wore her hair and makeup at work, insisting she stop coloring her hair, grow it out natural and not wear certain nail polish or lip gloss. (Ex. 23 at 10-12). Camacho forced Plaintiff to continue arguments begun the night before at work, telling her that they “weren’t done yet.” (Ex. 16 at 14; Ex. 23 at ¶ 48; Ex. 1 at 101). On July 14, 2016, the day after Plaintiff told Camacho she did not want anything to do with him anymore, Camacho turned in Plaintiff’s rescinded June 17, 2016 resignation letter to Human Resources, falsely claiming she had slipped it under his door that day.3 (Exhibit 24, Resignation Letter, dated June 17, 2016). On that same day, July 14, 2016, Camacho left Plaintiff a voicemail message saying she was terminated, and that FedEx had accepted her resignation letter, and that she had to drop off her badge and other FedEx equipment. (Ex. 10 at 184, 188). 19. Plaintiff knew how to use FedEx’s reporting mechanisms. For example, in 2012 she complained about a female employee, Lynette Ballentine, and in response to that complaint, Ballentine was investigated and ultimately terminated for reasons unrelated to sexual harassment, namely mishandling of funds. It was also determined that Ballentine engaged in unprofessional conduct – making inappropriate jokes and gestures to the team. 6/12/18 Hulett Dep. 14:21-15:12, 15:14-16:22. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff reported Lynette Ballentine to Dean Camacho, her manager, (Ex. 1 at 73), because he prohibited his employees from going to Human Resources or calling his supervisors to report or make any complaints. He told them that the “chain of command” and 3 On June 17, 2016 after turning in her resignation letter, Plaintiff only continued working because Camacho told her he would not give her letter to anyone and he convinced her that he would be the one to resign and leave. (Ex. 10 at 106- 107). Camacho’s lie about Plaintiff slipping her letter under his door was refuted by surveillance cameras and FedEx knew he was lying but believed all of his refutations of sexual harassment and disbelieved Plaintiff. (Ex. 19, Hulett Depo at 37-38). Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 13 of 46 Page 14 “proper protocol” was to go to him first since he was the Manager. (Ex. 10, at 100, 108-110; Ex. 21, Joseph Bass Depo at 84-85). 20. Section 5(a) (1) of The Occupational Safety and Health Administration (OSHA) Act of 1970, the General Duty Clause, requires employers to provide a workplace for employees that is “free from recognized hazards that [may] cause death or serious physical harm.” Attachment 6, Decl. of Grace Skertich, ¶ 15. RESPONSE: Undisputed. FedEx violated OSHA § 5 (a)(1) when it failed to provide an environment free from serious physical harm for Plaintiff when it allowed Mr. Camacho, its sole managerial employee in the “remoteness of the St. Croix location” (see Attachment 6 to FedEx’s SOF at ¶ 8), to continue working after being informed by FedEx employee Joseph Bass in 2014 and 2015 that Camacho was having sexual encounters with Sylvia Browne and Natacha Maldonado, two customer service assistants. (Ex. 20, Bass Complaint at ¶13; Ex. 21, Bass Depo at 230). Charlotte Mitchell, another customer service assistant, also complained of sexual harassment by Camacho in great detail but FedEx believed Camacho’s denials over Mitchell after failing to conduct a proper investigation. (Ex. 18). Expert witness, Dr. Fontes, opined: This case paints a picture of Dean Camacho as a serial sexual harasser, who took advantage of his position of authority over his women FedEx subordinates to press them for time alone and sexual favors. FedEx had notice of Camacho’s sexually harassing behavior by 2012 [Mitchell’s Complaint].” FedEx “took no significant action to stem his abuse or increase surveillance of him as a potential abuser.” (Exhibit 16, Dr. Fontes Expert Report at 9). 21. Employees can be terminated for first offense of workplace violence. 5/16/18 Maldonado Dep. 165:15-17. RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 65, below. Plaintiff did not willfully or intentionally disobey FedEx’s rules regarding workplace violence as she was under duress from FedEx manager, Dean Camacho’s on-going sexual harassment and abuse. Camacho’s blocking of her calls to his FedEx number in retaliation for her decision to discontinue sex with him, which she needed in order to check in about the Dangerous Goods, sabotaged her job as Camacho would not allow her to take time off from work that day unless she did so. (Ex. 10 at 94-99). In addition, FedEx Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 14 of 46 Page 15 violated its own workplace violence policy when it failed to investigate Camacho for sexual encounters with female subordinates after Joseph Bass reported it in 2014 and 2015 under oath. (Ex. 20, Bass Complaint at ¶13; Ex. 21, Bass Depo at 230). FedEx failed to terminate Camacho for sexually abusing and raping Ms. Maldonado in October 2011. (Ex. 40). Plaintiff informed Vanesa Hulett, “He raped me. He inserted his penis into my vagina.” (Ex. 10 at 50). She tried to push him away, grab him, but he still penetrated her vagina with his penis. “I’m like thinking, this is rape.” (Ex. 10 at 56-57). FedEx did not terminate Camacho for violating its Workplace Violence Policy. (Ex. 40). 22. The workplace violence policy prohibits (1) disruptive conduct while on duty or while on Company property; (2) using violent, threatening, intimidating, coercing, or abusive language; engaging in violent, threatening, intimidating, coercing, or abusive behavior; (3) fighting while on duty, at Company functions or on Company property; and (4) damage, destruction, interruption of use, or defacement of Company property. 5/16/18 Maldonado Dep. 156:15-157:15. After acknowledging these policy prohibitions, Plaintiff testified: Q: [Douglas] So you would agree with me that all of these portions of the policy that I reference to you served as the basis for FedEx’s decision to terminate your employment. A: [Plaintiff] Yes. 5/16/18 Maldonado Dep. 157:16-20. RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 21 above. 23. Plaintiff was terminated for violation of Sec. 2-5 of FedEx’s Acceptable Conduct policy, which prohibits workplace violence. 5/16/18 Maldonado Dep. 156:9-18. RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 65, below. 24. From 2013 through 2017, across FedEx’s domestic U.S. operations, 188 separate employees were terminated for first offense workplace violence. Attachment 7, Decl. of Vanesa Hulett, ¶ 5. RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 65, below. Further, this fact is immaterial to this summary judgment motion as this case is based on the Virgin Islands Wrongful Discharge Act which governs whether discharges are proper. (Ex. 49, FedEx Interviewer Notes) 25. In July 2015 Camacho issued Plaintiff a letter of concern because of an altercation she had with another employee, Sylvia Brown. 5/16/18 Maldonado Dep. 108:19-22, 112:21-24, Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 15 of 46 Page 16 Ex. 5. Camacho did not notify human resources of the incident; in annual workplace violence training it is mandated that workplace violence must be reported to upper management, human resources and security, and Camacho failed to do that. He merely issued Plaintiff a letter of concern that was not forwarded to human resources. 6/12/18 Hulett Dep. 55:17-57:19. RESPONSE: Disputed. See LRCi 56.1(b). FedEx’s “evidence” that Plaintiff previously violated their workplace violence policy is a Letter of Concern from Camacho to Plaintiff on July 28, 2015 for engaging in a verbal altercation with Sylvia Browne. (Exhibit 43, Letter of Concern to Plaintiff, July 28, 2015; Ex. 19, Hulett Depo at 55-56). Sylvia Browne was issued the same Letter of Concern for engaging in the verbal altercation with Ms. Maldonado. (Ex. 1 at 108-109). Sylvia Browne harassed Plaintiff constantly at work, cursed at her in the office, told her to “sit her ass down,” and behaved in a loud, angry, and hostile manner towards Plaintiff and others at FedEx. At one time, Ms. Browne followed Plaintiff into her cubicle and Plaintiff felt Browne would attack her if Camacho and Omar Mutidi did not intervene. (Ex. 1 at 110-112). FedEx did not terminate Browne for receiving the same Letter of Concern regarding an alleged workplace violence as FedEx did with Plaintiff. FedEx did not terminate Ms. Browne for her angry, hostile, volatile behavior at work, as it did with Plaintiff. Instead, FedEx promoted Browne in March 2017 to “Operational Coordinator” overseeing all of the St. Croix employees. (Ex. 17, Browne Depo at 11-12). 26. Plaintiff examined FedEx policies and determined that having a relationship with Camacho was against FedEx policy. 5/16/18 Maldonado Dep. 67:6-16. RESPONSE: Disputed. See LRCi 56.1(b). FedEx’s legal counsel Grace Skertich attested under oath that FedEx had no plans to “issue discipline to Maldonado as a result of th[e] policy violation,” of engaging in a “relationship” with her manager pursuant to FedEx Policy 4-50, Close Personal Relationships. (See Def’s Attachment 6 at ¶ 11). Yet, FedEx’s Termination Letter to Plaintiff includes this exact policy violation as a “reason” for terminating her. (Ex. 41) (“Based on the company’s investigation we have also determined that you engaged in and maintained an intimate relationship with your manager and direct supervisor and failed to report it to upper management. This is a clear violation Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 16 of 46 Page 17 of US People Manual 4-50”). FedEx has itself given contradictory reasons for Plaintiff’s termination. 27. Sec. 4-50 of FedEx policy prohibits employees who are dating or otherwise involved in an intimate relationship from working together in a direct reporting relationship. 5/16/18 Maldonado Dep. 157:21-158:7, Ex. 17. After acknowledging this policy prohibition, Plaintiff testified: Q: [Douglas] So you and [] Camacho were certainly dating between October 2012 and June 2016 – I’m sorry, July 2016? A: [Plaintiff] I would say start like dating would be 2013. *** Q: And during that time period the two of you were in an intimate relationship, correct? A: Right Q: And you certainly were working together, right? A: Right. Q: And he was your immediate manager, so you had a direct reporting relationship with him, right? A: Right. 5/16/18 Maldonado Dep. 158:9-11, 159: 2-9. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff was not in a consensual “dating relationship” with her manager, Dean Camacho.4 On July 13, 2016, at the FedEx office, Plaintiff asked Camacho to stop asking her personal questions and stop interfering with her personal life. (Ex. 10 at 143-144, 155- 156). FedEx again asked Ms. Maldonado if she thought what happened to her on October 11, could be defined as rape. (Ex. 10 at 67). Plaintiff explained that she did not want to call it rape and she did not want to think about it anymore, but “I know it was forced, and it wasn’t planned. It wasn’t expected, and it was forced.” (Ex. 10 at 67). Dr. Fontes testified that Plaintiff’s description of the October 11, 2012 incident is of a rape. (Ex. 8 at 172). Ms. Hulett asked, “Do you consider that you were against your will at that moment?” and Ms. Maldonado answered, “Yeah.” (Ex. 10 at 67). Dr. Fontes testified that Plaintiff used the word “consensual” when Hulett gave her the word. “That’s commonly the way people understand a sexual relationship if there isn’t physical force in the 4 “[S]exual coercion is considered both the least common and the most severe form of workplace sexual harassment. Ms. Maldonado claims that on multiple occasions, when she tried to end their relationship, Mr. Camacho threatened to get her terminated from FedEx.” (Ex. 16, Exp. Rep. at 14). Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 17 of 46 Page 18 moment. It doesn’t mean that there isn’t coercion.” (Ex. 8 at 157-158). Plaintiff referred to the rape as “our little secret” in a text message to Camacho, when she and Camacho were texting about her dating guys if she was single. Camacho texted, “all those dates and no sex, those guys would have been aggressive for sex” and “they would have taken it.” Plaintiff responded, “that would have been considered rape,” like “our little secret.” (Ex. 2 at 86-87; Ex. 42 at 63-64). Plaintiff was living with Alexis Doward, the father of her two children when the rape occurred, and she feared Mr. Doward would take matters into his own hands if he found out Camacho had raped her. (Ex. 45, Alexis Doward Depo, August 13, 2018 at 21-22). Camacho apologized and begged her not to tell anyone and that it would not happen again. For a while he left her alone. Mr. Camacho started buying Plaintiff jewelry for Christmas, and a cake for her birthday in January. (Ex. 10 at 46; Ex.1 at 69). Camacho sent gifts for Plaintiff’s two children, gave them money for good report cards, on their birthdays and at Christmas. (Ex. 10 at 47; Ex. 1 at 69). Camacho also began to “sweet talk” Plaintiff, showing a lot of interest, and telling her he respected her for not reporting him for sexual harassment. (Ex. 1 at 56-57). Camacho knew she was “vulnerable.” (Ex. 10 at 41). Mr. Camacho apologized for what had happened in October, and insisted that his treatment of her in October was “not like him.” After she repeatedly confirmed that she had not told anyone about the assault, he told her I’m here as a manager. I’m here in case you need anything. It seems like you’re unhappy at home. I’m sorry I had ever disrespected you. “You need to be treated like a queen.” Ms. Maldonado recounts that after a while she opened up and “he was a crying shoulder.” (Ex. 16 at 13). Around the end of December 2012, Camacho took Plaintiff out on deliveries in a FedEx van alone. He pulled over to a secluded area under the pretense that he “wanted to talk to [her]” as her Manager. (Ex. 1 at 56-58; Ex. 10 at 69-70). Camacho told Plaintiff that he really liked her and “admired [her] for staying quiet” about what occurred on October 11, 2012. (Ex. 1 at 56, 58). Camacho was “talking, Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 18 of 46 Page 19 talking, talking.” (Ex. 1 at 57). Camacho told Plaintiff he wanted “another taste” of her and moved from his seat toward her seat and started kissing her and touching her. (Ex. 1 at 58). Ms. Maldonado did not kiss him back. (Ex. 1 at 58). Ms. Maldonado did not touch him back. (Ex. 1 at 58). Ms. Maldonado testified, “basically, like, I just gave in to him.” (Ex. 1 at 59). Dr. Fontes testified that although Plaintiff called it a “relationship,” nothing in their text messages or their actions showed it was a consensual, loving relationship, as Plaintiff described coercion, lies, physical force, and loving acts that seemed to be aimed at controlling her, including being told by Camacho that she would lose her job. (Ex. 8 at 160, 164; Ex. 1 at 58-59; Ex. 16, Expert Report at 13). Plaintiff admitted it was never a “real relationship,” with no anniversary to celebrate. (Ex. 8 at 161-162; Ex. 23 at 60). Camacho demanded that Plaintiff give him sex whenever he wanted. If she refused to give him, he would accuse her of having sex with someone else. (Ex. 23 at 46). When she denied him sex he also would stop talking to her at work and ostracize her. (Ex. 23 at 46). 28. The reasons for the anti-dating policy between a supervisor and subordinate are many, including (1) making sure that management officials issue counseling and discipline when warranted and not refrain from such because of a personal or intimate relationship; (2) avoid the perception of favoritism and abuse of authority; (3) prevent the creation of circumstances that could serve as a basis for sexual harassment allegations; (4) preventing the actual or perceived loss of objectivity, which could have adverse effects in the workplace, including but not limited to, not complying with policy as it pertains to policy violations; and (5) preventing situations that hinder operations, cause embarrassment, distract colleagues, and cause arguments in the work place. Decl. of Hulett ¶ 7. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff was not in a consensual dating relationship with Camacho as indicated by his actions, by Ms. Maldonado’s testimony, by Dr. Fontes’ expert opinions of the coercive control Camacho held over Plaintiff, and by Camacho’s admission that he sexually harassed Plaintiff in violation of FedEx’s policies. Ex. 5, Camacho Depo, at 93 (“I will without any reservation acknowledge that I violated the policy. . . Sexual harassment policy.”). See also Response to No. 27, above. 29. Plaintiff first had sexual relations with Camacho on October 11, 2012. 5/16/18 Maldonado Dep. 11:13-16, 55:12-14. While at Camacho’s mother’s house, they were there for 15 Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 19 of 46 Page 20 minutes between 1 p.m. and 2 p.m., and their intercourse lasted “a few minutes.” Id. 51:4-52:25. According to Plaintiff, while at his mother’s house: “he raped me[,] He inserted his penis into my vagina.” 5/16/18 Maldonado Dep. 48:16-22, 50:10-12. RESPONSE: Disputed. See LRCi 56.1(b). Camacho raped Plaintiff on October 11, 2012 and there was no consensual “sexual relations”. See RSOF No. 5, 21, 30, 31. On October 11, 2012, while Camacho was driving alone in the FedEx van with Plaintiff as a result of his ordering her to accompany her for no company based reason, Camacho stopped at his mother’s house. (Ex. 1 at 48; Ex.10 at 49-50). Plaintiff stayed in the van while Camacho ran in supposedly to do an errand. He then came out and signaled for her to come in. (Ex. 1 at 48). Plaintiff did not know why he was calling her to come in and he told her he had something to show her in the trailer/clubhouse next to his mother’s house, supposedly some work he was doing on the bathroom of the trailer/clubhouse. (Ex. 1 at 48-49; Ex. 10 at 51). FedEx courier, Omar Mutidi, confirmed that Camacho had a trailer in his Mom’s yard and was doing work on it getting the bathroom fixed up. (Ex. 9 at 25-27). Ms. Maldonado thought it was awkward, but Camacho was being “awfully friendly” so she went inside. (Ex. 10 at 51). He pointed out the bathroom he was tiling and fixing up and asked if she liked it. She told him it looked cool and started to walk off, but he kept talking, trying to keep her there. (Ex. 1 at 49; Ex. 10 at 52). He asked her to have a seat on the couch, she wanted to leave, but he is her boss, so she sat in front of the TV with her legs crossed thinking the situation was weird. (Ex. 10 at 52). Camacho was making general conversation, and then sat down next to Plaintiff and started telling her he is so attracted to her and he just wants to “have a taste of [her].” (Ex. 1 at 49; Ex. 10 at 52-53). Mr. Camacho reached over and began unbuttoning Ms. Maldonado’s pants, pulling down the zipper, telling her everything is going to be okay. (Ex. 1 at 49; Ex. 10 at 53). Ms. Maldonado tried to cover up, tried to push him away, told him no repeatedly, that it’s not okay, but he overpowered her. She testified, Mr. Camacho “force[d] himself on me.” (Ex. 1 at 49-50; Ex. 10 at 56). Camacho told Ms. Maldonado, “You’re not going to be in trouble.” (Ex. 10 at 56-57). Plaintiff testified, “He raped me. He inserted his penis into Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 20 of 46 Page 21 my vagina.” (Ex. 1 at 50). She tried to push him away, grab him, but he still penetrated her vagina with his penis. “I’m like thinking, this is rape.” (Ex. 10 at 56-57). Plaintiff was crying and saying, “This is not right. You know you’re my manager. This is not right.” (Ex. 1 at 50).Camacho told Plaintiff, “It’s ok, you don’t have to be scared of me. I’m your manager.” (Ex. 1 at 49-50). Mr. Camacho begged her not to report him. He said, “I just had to taste you,” and “Sometimes in life you have to do things that’s wrong to make things right.” (Ex. 1 at 50-51). Camacho tried to assist Plaintiff in pulling back up her clothes and she told him, “Don’t touch me.” (Ex. 1 at 50). Plaintiff testified the incident on October 11, 2012 was not consensual sex. (Ex. 1 at 55). 30. After the sexual intercourse, Camacho dropped Plaintiff off at the station and Plaintiff “just went about [her] normal work schedule in the office,” Id. 53:11-17; and she was able to carry out her normal work duties and came back to work the next day, a Friday, and worked a full day. Id. 53:20-54:6. In a text message to Camacho on April 8, 2016, Plaintiff admits that Camacho did not rape her. 8/15/18 Maldonado Dep. 79:12-80:12. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff has never denied she was raped. She referred to the rape as “our little secret” in a text message to Camacho, when she and Camacho were texting about her dating guys if she was single. Camacho texted, “all those dates and no sex, those guys would have been aggressive for sex” and “they would have taken it.” Plaintiff responded, “that would have been considered rape,” like “our little secret.” (Ex. 2 at 86-87; Ex. 42 at 63-64). Plaintiff did not report the rape as she was living with Alexis Doward, the father of her two children, and she feared Mr. Doward would take matters into his own hands if he found out Camacho had raped her. (Ex. 45, Alexis Doward Depo, August 13, 2018 at 21-22). Plaintiff explained that she did not want to call it rape and she did not want to think about it anymore, but “I know it was forced, and it wasn’t planned. It wasn’t expected, and it was forced.” (Ex. 10 at 67). She testified the incident on October 11, 2012 was not consensual sex. (Ex. 1 at 55). Dr. Fontes testified that Plaintiff’s description of the October 11, 2012 incident is of a rape. (Ex. 8 at 172). Dr. Fontes explained that Plaintiff’s confusion Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 21 of 46 Page 22 about her sexual assault by Mr. Camacho, someone she knows well, demonstrates the typical “denial” style of coping and is a common response in these situations. (Ex. 16, Exp. Rep. at 12). 31. Plaintiff did not disclose the October 11 incident. 5/16/18 Maldonado Dep. 53:18- 19. The first time she told FedEx about what occurred on October 11 was during an interview with human resources in 2016. Id. 54:16-22, 55:4-11. RESPONSE: Disputed. See LRCi 56.1(b). The rapist was a FedEx supervisor, Camacho, who knew what he did. Plaintiff was too scared to report the rape to others or file a police report. (Ex. 1, Pl’s Depo I, at 45). She was scared to think that she had even been raped. (Ex. 10, Pl’s Interview with Hulett at 60). Plaintiff was scared Camacho5 would deny it and no one would believe her. (Ex. 10 at 56-57). “I have read stories that they tried to make it seem like, oh no, I didn’t rape her,” she attested. (Ex. 10 at 57). Ms. Maldonado was afraid Camacho would say, “she was fine with it,” and it would be his word against hers. (Ex. 10 at 56-57). Dr. Fontes testified that most victims of sexual assault do not report it to the police. (Ex. 8, Fontes Depo at 167, 1906). When FedEx’s Vanesa Hulett later asked Plaintiff why she didn’t report the sexual harassment, Plaintiff told her, “I have felt very helpless and have had sleepless nights over this, because as much as I would have want (sic) to say something earlier, I always think back to his retaliation.” (Ex. 10 at 93-94). Camacho told her he would make sure she got terminated if ever she complained to FedEx. (Ex. 10 at 94, 101). See also Response to No. 30 above. 5 “Ms. Maldonado repeatedly referred to Mr. Camacho’s reassurances that everything was “fine.” As she was trying to make sense of her experience of sexual assault, office life continued as normal, Mr. Camacho reassured her, and Ms. Maldonado coped with her experience alone. By converting Ms. Maldonado into someone who felt like his girlfriend, Mr. Camacho neutralized the threat that she would report him to the police or to FedEx.” (Ex. 16, Ex. Rep. at 12. 6 “Ms. Maldonado’s calculation of the risks of reporting the incident is so common globally that it can be considered normative. Even in the mainland United States, which has a more enlightened and user- friendly system for reporting sexual assault than many other nations, the National Institute of Justice (2010) reports that only one third of completed rapes and 26% of sexual assaults are reported to authorities. Due to the cultural factors discussed above, the percentage of sexual assaults reported to authorities is quite likely even lower for the Caribbean (U.N.O.D.C. 2007).” (Ex. 16, Fontes Exp. Rep. at 11). Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 22 of 46 Page 23 32. No police report was filed on or after October 11 and no documentation was sent to any law enforcement organization, alleging she was sexually assaulted on October 11. 5/16/18 Maldonado Dep. 44:9-18. Even after her termination from FedEx, Plaintiff did not file any police report or submit any written statements to law enforcement claiming she was sexually assaulted in 2012. Id. 45:19-23. RESPONSE: Undisputed for purposes of summary judgment only. See LRCi 56.1(b). 33. Plaintiff did not seek any rape or sexual assault counseling. 5/16/18 Maldonado Dep. 44:19-23. After her termination from FedEx, she did not seek any rape or sexual assault counseling. Id. 45:24-46:1. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff sought mental health treatment in 2015 for depression, anxiety and suicidal thoughts due to her sexual harassment at FedEx and with Mr. Camacho. (Ex. 1 at 167- 170; Exhibit 22, Island Therapy Medical Records). There is no evidence that Plaintiff could afford to seek counseling after FedEx terminated her. Plaintiff had lost income and health benefits, and FedEx fought her request for unemployment benefits such that she was denied unemployment benefits from the Dept. of Labor. (Ex. 1 at 135). 34. After October 2012, all sexual contact with Camacho was consensual. 5/16/18 Maldonado Dep. 44:24-45:1. Plaintiff’s first consensual sexual intercourse with Camacho was in December 2012. 5/16/18 Maldonado Dep. 55:21-23. There were no threats to her employment. Id. 56:13-16. RESPONSE: Disputed. See LRCi 56.1(b). Dr. Fontes noted that in Plaintiff’s interview with Ms. Hulett on July 27, 2016, Ms. Maldonado accepted Ms. Hulett’s characterization of her relationship with Mr. Camacho as “consensual.” (Ex. 10 at 70-71; Ex. 16 at 13). However, at the same time Plaintiff described Mr. Camacho’s incessant lies, manipulations, stalking, and conflation of their work and “personal” life. (Ex. 10 at 78-83; Ex. 16 at 13). Plaintiff testified that he lied; he manipulated me; he mentally harassed me; he took advantage of me. (Ex. 1 at 101-102). Camacho spied on Plaintiff at work, rewinding the FedEx surveillance cameras to view footage of Plaintiff interacting with customers, then accusing her of speaking to male customers for too long a period or taking their phone numbers. He told her, “I saw everything.” (Ex. 1 at 100-101; Ex 16 at 13, ¶ 5-6). During work Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 23 of 46 Page 24 hours, Camacho kept her in his office talking. He told her lies about his age, the number of kids he had (8, not 5), that he was living at his mother’s house, when he was actually living with a girlfriend, and that he had never had an affair with Sylvia Browne. (Ex. 10 at 78-79, 8; Ex. 1 at 102). Camacho pushed Plaintiff to send him naked photos of herself from the start of their “intimate relationship.” (Exhibit 42, Camacho Depo II, August 21, 2018, at 12-14; Exhibit 2, Plaintiff’s Depo II, August 15, 2018, at 23-25; Ex. 8 at 181). When Camacho was off the island, he requested Plaintiff send him nude photos from the FedEx bathroom. (Ex. 16 at 15; Ex. 5 at 73; Ex. 42 at 14, 73-74, 84-85). He also sent Plaintiff nude photos while she was at FedEx working. (Ex. 5 at 77-78; Ex. 42 at 77-79). Camacho ordered Plaintiff to ignore her job duties to continue arguments with him at work. (Ex. 1 at 101). Camacho would give Plaintiff a reprieve to work, then upon his whim, demand she continue the personal discussion, saying, “I’m not finished with you yet.” “Are you messing with somebody?” (Ex. 1 at 101). This unpredictability in her work life caused Plaintiff to feel “overwhelmed and stressed,” to the point where she wrote two resignation letters. (Ex 1 at 100, 140; Ex. 10 at 82-85). If Plaintiff clocked out for a lunch break, Camacho would grill her at the office later about where she had been and what she had done, double-checking her story to try to “catch” her in a lie. (Exhibit 23, Plaintiff’s Affidavit at 39). Camacho threatened to terminate Plaintiff if she reported him to FedEx. (Ex. 1 at 113-114; Ex. 45 at 29). He texted her messages to this effect. (Ex. 42 at 53-54, 57, 60-61). Plaintiff testified, “That was his way of stopping me from reaching out to anybody.” (Ex. 10 at 87-88). Camacho told Plaintiff if she reported the sexual harassment, no one would believe her, and everyone would believe him. (Ex. 1 at 113-114). Plaintiff told Alexis Doward, her ex-boyfriend, that her work environment was unbearable, and Camacho had a “noose” around her. (Ex. 45 at 29). Dr. Fontes explained that sexual harassment at work that extends into someone’s private life is an “iron cage.” Plaintiff was entrapped in an “iron cage,” which is not “consensual.” (Ex. 8 at 196-197). 35. The consensual sex took place on FedEx property, in FedEx vehicles and they conceived children together: (a) Plaintiff admits that between 2013 and 2015 she and Camacho had consensual sex Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 24 of 46 Page 25 on FedEx property between 12 to 14 times. 5/16/18 Maldonado Dep. 11:23-25, 12:15-18, 13:1-4; the sex lasted for ten minutes, Id. 14:24-15:3; took place in his office and was not witnessed by anyone, Id. 13:11-23; and the sex on FedEx property occurred after hours when she was “off the clock”, Id. 14:5-17. (b) Plaintiff and Camacho had consensual sex in a FedEx vehicle six to eight times, including once in 2012 and once in late 2015 or early 2016, 5/16/18 Maldonado Dep. 17:16- 18:22, 19:18-22, and the vehicle sex was not witnessed by anyone. Id. 19:3-5, 19:23-20:1. (c) Plaintiff and Camacho conceived a child in December 2012 and had an abortion in January 2013. 5/16/18 Maldonado Dep. 181:13-21. They aborted another baby in October 2013. Id. 182:3-4. Plaintiff and Camacho also conceived children in December 2013 and gave birth to twins in August 2014. Id. 182:512. RESPONSE: Disputed. See LRCi 56.1(b). Dr. Fontes testified that although Plaintiff called it a “relationship,” nothing in their text messages showed it was a consensual, loving relationship, as Plaintiff described coercion, lies, physical force, and loving acts that seemed to be aimed at controlling her, including being told by Camacho that she would lose her job. (Ex. 8 at 160, 164; Ex. 1 at 58-59; Ex. 16, Expert Report at 13). Plaintiff admitted it was never a “real relationship,” with no anniversary to celebrate. (Ex. 8 at 161-162; Ex. 23 at 60). Camacho pushed Plaintiff into having his baby, as he was obsessed that she had kids with her ex, Doward, and felt she should have kids with him, too. (Ex. 10 at 79; Ex. 31 at 59-60). When Plaintiff was giving birth to the twins on August 21, 2014, Camacho disappeared off-island for two weeks leading up to her labor and delivery, leaving Plaintiff alone. (Ex. 1 at 182; Ex. 45 at 47). See also Responses to Nos. 27-28, 34 above. 36. Evidence of the consensual nature of the relation include Plaintiff’s admission that (1) she voluntarily sent Camacho graphic nude videos and photographs of herself, 8/15/18 Maldonado Dep. 20:16-21:2, 23:15-24:6, and had been providing them from the beginning of the relationship, Id. 31:18-32:2; (2) in July 2013 she was trying to get pregnant with Camacho’s child while still living with another man (Alexis Doward), Id. 46:5-11, 47:14-17; (3) she referred to Camacho as her “husband” and called him “King,” Id. 51:2-10, 51:18-20; (4) Camacho asked her to marry him on more than one occasion, Id. 51:21-25; and (5) periodically exchanged gifts throughout their relationship from December 2012 up to July 2016, and Plaintiff was appreciative of the gifts he gave her. 5/16/18 Maldonado Dep. 180:4-14. RESPONSE: Disputed. See LRCi 56.1(b). Evidence the “relationship” was not consensual between Ms. Maldonado and Mr. Camacho, her manager and supervisor, include: 1) Mr. Camacho requested that Plaintiff send him sexual photographs and videos starting in March/April 2016 when he was off the Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 25 of 46 Page 26 island for a period of time, Plaintiff did not volunteer the photos. (Ex. 2, Pl’s Depo II at 24-25, 31- 32).7 Plaintiff did not testify she has been providing Camacho with nude photos since the beginning of the “relationship,” as FedEx miscites, but sent for first time March/April 2016. (Ex. 2 at 31-32). Plaintiff testified that she was nervous about sending the images, and Camacho encouraged her by telling her that she could trust him, and that he would take a look at them and delete them right away, which he did not. (Ex. 23, Pl’s Aff at ¶ 41). Camacho took nudes of himself and sent them to her first, to reassure her that it was “okay,” and told her the photos were to help him address his sexual urges while he was away from her. (Ex. 2 at 24-25; Ex. 23 at ¶ 41, 43).8; 2) Plaintiff stopped being intimately involved with Alexis Doward, the father of her first two children, in April 2013, not July 2013. FedEx again miscites the record. (Ex. 2 at 48). Mr. Doward confirmed that he and Plaintiff, stopped having an intimate relationship from April 2013. (Ex. 45 at 15, 19). Mr. Camacho impregnated Ms. Maldonado twice in 2013, and pushed Ms. Maldonado to terminate these pregnancies with abortions to hide he was having sex with her. (Ex. 23 at ¶ 44). Camacho “begged and pushed” her to have a little girl with him, who he wanted to name, Summer. (Ex. 2 at 46.9) 3) Plaintiff and Camacho called each other by nicknames at times, talked about marriage, and Camacho gave her gifts periodically, but Plaintiff testified that Camacho lied incessantly to her, including telling her he was not in a relationship when he was living with another woman. (Ex. 1 at 101-104). Dr. Fontes testified that Plaintiff had “a relationship with her boss that was largely coerced, that included some times that felt pleasant and like family and like love, as most coercive control relationships have,” but which are based on a “power imbalance” notable here where Camacho had power over Plaintiff’s very livelihood. (Ex. 8 at 179-180). 37. Plaintiff and Camacho voluntarily exchanged text messages, and those messages demonstrate the dates, initiating party, receiving party, and scope of their relationship, and in addition, they exchanged graphic sexually based photographs and videos of themselves. Attachment 7 See also Exhibit 16, Exp. Rep. at 14; Ex. 8, Fontes Depo at 177-178 (Plaintiff was pushed to send the nude photos in a “very disturbing and very coercive” way. 8 See also Exhibit 16, Exp. Rep. at 14 9 See also Exhibit 16, Exp. Rep. at 15. Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 26 of 46 Page 27 8, Fed. R. Evid. 1006 Chart (Five Column Chart Summarizing Date, Sender, Recipient, Brief Nature of Text Communication, and Bates nos.). RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 36 above. 38. The last sexual relations between Plaintiff and Camacho was June 2016, a month before her termination. 5/16/18 Maldonado Dep. 45:2-13. RESPONSE: Undisputed for purposes of summary judgment only. See LRCi 56.1(b). 39. Camacho never threatened to terminate or discipline Plaintiff if she did not have sex with him. 5/16/18 Maldonado Dep. 114:11-18. RESPONSE: Disputed. See LRCi 56.1(b). . Camacho’s actions and words implied he would terminate Plaintiff if she stopped having sex with him. He undisputedly threatened to terminate Plaintiff numerous times if she reported that he was sexually harassing her at work. (Ex. 1 at 113-114; Ex. 45 at 29). He texted her messages to this effect. (Ex. 42 at 53-54, 57, 60-61). “I felt like he used his authority to have me there,” because “he doesn’t want me to leave FedEx and “he doesn’t want me to leave the relationship.” (Ex. 31 at 12). 40. From 2012 until the time of her deposition, Plaintiff did not disclose the consensual sex taking place on FedEx’s property or vehicles between her and Camacho. 5/16/18 Maldonado Dep. 16:2-6, 18:23-19:2-20:1. RESPONSE: Disputed. See LRCi 56.1(b). See Responses to Nos. 34-36. 41. According to Plaintiff, the consensual sex was not witnessed by anyone. 5/16/18 Maldonado Dep. 13:11-23. No one saw Camacho touching Plaintiff sexually, and until her deposition she had not told anyone. Id. 16:24-17:14. Plaintiff testified that co-worker Sylvia Brown never said anything suggesting that she knew Plaintiff was in a personal relationship with Camacho. 5/16/18 Maldonado Dep. 71:23-72:7. RESPONSE: Disputed. See LRCi 56.1(b). Camacho had sex with Plaintiff in his office with the couriers and other FedEx employees right outside. (Ex. 1 at 13). FedEx courier, Omar Mutidi, saw Plaintiff coming out of Camacho’s office after sex all the time. (Ex. 1 at 15, 195-196). Mr. Mutidi testified that Ms. Maldonado and Mr. Camacho were often in Camacho’s office behind closed doors at the Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 27 of 46 Page 28 end of the day. (Ex. 9 at 31). Mutidi went to Camacho about rumors on the streets that Camacho was “dealing with” Ms. Maldonado and that Camacho was the father of Ms. Maldonado’s twins. Camacho vehemently denied the rumors. (Ex. 9, Mutidi Depo at 13-17). FedEx courier, Joseph Bass, told Alexis Doward that he saw some inappropriate stuff going on in the office between Ms. Maldonado and Camacho. (Ex. 45 at 22-23). FedEx courier, Adam Powell, knew about Camacho and Plaintiff’s sexual relationship. (Ex. 48, A. Powell Depo at 32-34; Ex. 45 at 28-29). Sylvia Browne attacked Plaintiff with snide remarks, getting upset whenever Plaintiff had to speak to Camacho. (Ex. 10 at 14). In 2013, Ms. Browne spied on Mr. Camacho and Plaintiff through the warehouse window to his office while they were alone in Camacho’s office behind locked doors. (Exhibit 5, Camacho Depo I at 120-122, 128-129). Ms. Browne accused Plaintiff of having her FedEx uniform pants’ button undone and her zipper pulled down in the office and referred to Plaintiff’s behavior as “slack.” (Exhibit 17, Sylvia Browne’s Depo, August 14, 2018, at 49-53; see also Ex. 11, Mitchell Depo at 62, 65-66). A lot of arguing and confusion ensued between Sylvia Browne, Natacha Maldonado and Dean Camacho about what was really going on behind the locked door. (Ex. 11 at 63-65; Ex. 1 at 196). This caused strife between Browne and Ms. Maldonado and resulted in a rough working relationship. (Ex. 10 at 13-14; see also Ex. 21, Joseph Bass Depo at 230). 42. FedEx employees, who worked with Plaintiff and Camacho, testified they did not know of their relationship (Attachment 9, 8/14/18 Powell Dep. 30:12–25, 35:5-14, 50:20–51:1; Attachment 10, 6/13/18 Mitchell Dep. 30:24–31:2; Attachment 11, 8/16/18 Mutidi Dep. 28:21–25, 31:4–12; Attachment 12, 8/14/18 Browne Dep. 42:3–7, 47:7–16, 80:7–9); and never disclosed any suspicions or belief to FedEx management or human resources (Powell Dep. 33:22–34:4, 38:23– 39:5, 57:25–58:5; Mitchell Dep. 67:5–7, 69:1–19; Mutidi Dep. 19:9–16). Joseph Bass never told human resources that he suspected Camacho was the father of Plaintiff’s twin boys. 6/12/18 Hulett Dep. 57:20-58:3. RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 41 above. Joseph Bass reported Camacho was having sexual relations with women at work and was the father of one of their babies in his 2014 Complaint against FedEx. In July 2015, Bass testified it was Natacha Maldonado. FedEx had full Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 28 of 46 Page 29 knowledge of the sexual relationship and should have investigated in 2014. (Ex. 20, Bass Complaint at ¶13; Ex. 21, Bass Depo at 230). FedEx legal counsel and management did not report the complaint to Human Resources in violation of FedEx’s policy. (Ex. 7, FedEx Employee Handbook at 48-49). 43. Plaintiff emailed Camacho, and copied Hulett and Mondesir, on July 15, 2016. In the email she complains (1) her resignation letter was given to Camacho on June 17 not July 14, 2016; (2) Camacho left a “threatening voicemail message”; (3) “our relationship has been more than work related and that you are the father of my twin boys”; and (4) “the reason you are doing this is because things started to get bad between us and I no longer wanted to be in a relationship with you.” Id. Ex. 9. Specifically, this email was sent to Camacho, Hulett, and Mondesir at 1:08 a.m. on July 15. Seven hours later, Hulett responds to Plaintiff’s 1:08 a.m. email at 8:08 a.m. also on July 15, and copying the managing director (Medina), security senior manager (Steve Pittman), security manager (Lionel Garcia), and a FedEx attorney (Maria Feliu). On the same day, Hulett called Plaintiff to reassure her. 5/16/18 Maldonado Dep. 183:5-12. About 1.5 hours after Hulett’s emails, security specialist Colon is directed to commence an investigation. 5/16/18 Maldonado Dep. 183:5- 12; Colon Dep. 59:15-60:13, 60:5-11, Ex. 34 (7/18/16 Colon Report), p. 1, 112:12-21-115:2, Ex. 35, pp. 51, 52. RESPONSE: Disputed. See LRCi 56.1(b). Hulett, called Plaintiff on July 15, 2016 to inform her that FedEx Security Vic Colon was coming to St. Croix to interview her and Plaintiff stated that Ms. Hulett was “really nice” she told Plaintiff, “I’m so sorry you have to go through this.” (Ex. 31 at 69-70). Plaintiff felt a false sense of assurance that FedEx was concerned about her report of sexual harassment and wrongful termination. (Id.; (Ex. 49, FedEx Interviewer Notes). Hulett sent a follow up email summarizing her conversation with Plaintiff to Lionel Garcia, Manager of International Security for FedEx, with copies to Maria Feliu, FedEx’s Legal counsel, Rolando Medina, and Rene Garcia, FedEx’s Manager of Human Resources. (Exhibit 33, Hulett’s Email to Lionel Garcia, July 15, 2016; (Ex. 49, FedEx Interviewer Notes). Hulett informed the recipients, amongst other things, that Plaintiff “has emails, voicemails, text messages and call history demonstrating harassment and threats from Dean;” that Ms. Maldonado was changing locks to her home as Camacho has keys; and that Ms. Maldonado did not go to work that day as she is “scared.” (Exhibit 33). FedEx Security, Vic Colon, who was coming to interview Plaintiff, had no training in EEOC investigations, or in Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 29 of 46 Page 30 how to investigate a complaint of sexual harassment, and he was not sent to investigate Plaintiff’s report of sexual harassment. (Ex. 12 at 44, 46). His supervisor, Lionel Garcia, FedEx’s Security Manager, testified that Security does not investigate claims of harassment. (Exhibit 51, Lionel Garcia Depo at 87-88). On July 15, 2016, FedEx’s St. Thomas’ Manager, Kelley O’Brien, went over to St. Croix to give Mr. Camacho a Letter of Suspension from Mr. Mondesir. (Exhibit 46, Camacho’s Suspension Letter). At his suspension on July 15th, Camacho falsely told FedEx that Plaintiff was extorting money from him concerning a sexual encounter he had with her years ago; that she was causing problems in the station; and he had hired a security guard in case she came back. (Exhibit 47, Email from Kelley O’Brien to Mondesir, copy to Vic Colon).). FedEx’s Security Vic Colon admitted that he was asked to investigate solely a workplace violence incident in St. Croix. (Ex. 12, Colon Depo at 45, 90). Mr. Colon’s Report states at the top of his Report that it is about violation of FedEx’s Workplace Violence Policy (WVP), with no mention of FedEx’s policy about sexual harassment. (Exhibit 28 at 1). Vic Colon never told Plaintiff he was there to investigate claims of workplace violence by Plaintiff. (Exhibit 31 at 6-7). Dr. Fontes opined that Hulett’s investigation was disrespectful and only about victim blaming, and the throwing of the cell phone. (Ex. 8 at 208, 211). Of note, when Plaintiff told Human Resources Advisor, Vanesa Hulett, that Camacho had raped her, (Ex. 10 at 51-57), Hulett asked Plaintiff if she was sure she had been raped. (Ex. 10 at 60-61, 64). 44. The July 15 email from Plaintiff was the first time Hulett became aware that Camacho and Plaintiff were in an intimate relationship. 6/12/18 Hulett Dep. 27:5-18. RESPONSE: Disputed. See LRCi 56.1(b). Joseph Bass had disclosed it in 2014 and 2015. (Ex. 20, Bass Complaint at ¶13; Ex. 21, Bass Depo at 230). 45. Plaintiff’s July 15 email led human resources to believe that there could be workplace violence, and as a result, security was contacted to be involved in the investigation to investigate the existence of any workplace violence. 6/12/18 Hulett Dep. 51:11-18; Colon Dep. 46:9- 15. Specifically, Plaintiff claims Camacho “left a threatening voice mail message.” 6/12/18 Hulett Dep. 52:8-23, Ex. 27, p. 31. Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 30 of 46 Page 31 RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 43 above. 46. Plaintiff’s own workplace violence infraction was discovered by the security team during their investigation. 6/12/18 Hulett Dep. 54:2-8. RESPONSE: Disputed. See LRCi 56.1(b). FedEx did not investigate or draw any conclusion as to why a ten-year, valuable employee such as Natacha Maldonado, would suddenly throw a cell phone at work. (Ex. 28, Colon’s Security Report; Exhibit 29, Pl’s Statement to Vic Colon; see also Exhibit 31, Plaintiff’s Recorded Interview with Vic Colon, at 10-60; Ex. 8 at 223). On July 18, 2016, Plaintiff spent hours reiterating and elaborating on her complaints against Mr. Camacho for sexual harassment that she first informed FedEx about in her email of July 15, 2016, and then in a phone conversation with Hulett on the same day. (Ex. 27). Plaintiff gave both verbal and hand-written Statements about her sexual abuse and harassment by Camacho to Mr. Colon. (Exhibit 29, Plaintiff’s Statement, July 19, 2016; Exhibit 31, Plaintiff’s Recorded Interview with Vic Colon, July 18, 2016). Plaintiff explained the history of Camacho’s sexual harassment, including her rape on October 11, 2012.10 (Ex. 12 at 28-29). She explained Camacho’s sweet talking and grooming of her in his FedEx office, his gifts and money given to her at work, his coercing her to have his baby, his numerous lies and deceptions, her attempts to leave the relationship, and his threats that he would make sure she lost her job if she ever reported him. (Exhibit 29; Exhibit 31 at 10-60). Mr. Colon did not include any of these allegations in his Report. (Ex. 28). Vic Colon’s supervisor, FedEx’s Security Manager, Lionel Garcia, testified he listened to Plaintiff’s recorded interview with Colon and agreed that Plaintiff asserted she was raped. (Ex. 39 at 77-78). Mr. Colon was disciplined for failing to put the word “rape” in his Security Report. (Ex. 12 at 23-29). Colon took statements from all of the FedEx employees about the events at work on July 12th and 14th between Camacho and 10 Vic Colon’s supervisor, FedEx’s Security Manager, Lionel Garcia, testified he listened to Plaintiff’s recorded interview with Colon and agreed that Plaintiff asserted she was raped. (Ex. 39 at 77-78). Mr. Colon was disciplined for failing to put the word “rape” in his Security Report. (Ex. 12 at 23-29). Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 31 of 46 Page 32 Plaintiff. (Exhibit 32, Statements from Sylvia Browne, Omar Mutidi, Adam Powell, Kevia Andrews and Abasie Williams, dated July 20, 2016). All of the employees admitted they suspected Camacho was in a physical, intimate relationship with Ms. Maldonado. (Ex. 12 at 69-71). Colon did not put that in his Report. (Ex. 28). Mr. Colon did not ask the employees to give Statements about the suspected relationship between Camacho and Plaintiff. When asked why not, Colon gave several different excuses, including an alleged time-crunch, the employees were short-handed, and the information was allegedly not “concrete.” (Ex. 12 at 71). Mr. Colon’s conclusion on his investigation of workplace violence by Plaintiff was that Ms. Maldonado “battered her manager;” engaged in a verbal altercation with him; and confessed to physically striking Camacho and throwing a cell phone in his direction. (Ex. 28). Plaintiff had given FedEx over fifty pages of tape- recorded statements, and six pages of her handwritten Statement, detailing sexual harassment and abuse by Camacho. (Ex. 31; Ex. 29). FedEx did not investigate or draw any conclusion as to why a ten-year, valuable employee as Natacha Maldonado, would suddenly throw a cell phone at work. (Ex. 28, Colon’s Security Report; Exhibit 29, Pl’s Statement to Vic Colon; see also Exhibit 31, Plaintiff’s Recorded Interview with Vic Colon, at 10-60; Ex. 8 at 223). 47. The first step in the investigation was to immediately place Camacho on suspension; after he was suspended, FedEx security (Vic Colon) traveled to St. Croix to perform a workplace violence investigation. 6/12/18 Hulett Dep. 34:12-24; Skertich Decl., ¶ 7. Camacho was taken out of the workplace on the same day (July 15) Plaintiff complained to Hulett. Colon Dep. 115:15-116:13; Hulett’s Dep. Exh. Ex. 27 pg. 22 (Camacho suspension letter). Plaintiff acknowledges that Camacho was suspended the same day she complained to Hulett. 5/16/18 Maldonado Dep. 150:1-9,183:22-24. RESPONSE: Undisputed for purposes of summary judgment only. See LRCi 56.1(b). Agree the investigation was work place violence by Maldonado and not as to sexual harassment and retaliation by Camacho. 48. Twelve days after Camacho was suspended, on July 27, 2016, Plaintiff was suspended pending investigation. 5/16/18 Maldonado Dep. 150:15-151:14, Ex. 13. RESPONSE: Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 32 of 46 Page 33 Disputed. See LRCi 56.1(b). Plaintiff’s suspension was made effective July 15, 2016. (Ex. 36). Notably, seven (7) days from the date Plaintiff first reported Camacho on July 15, 2016,11 FedEx decided to send a Human Resources person to interview Plaintiff allegedly about her sexual harassment complaints.12 FedEx’s Legal counsel was assigned to oversee the investigation. (Exhibit 34, Email Chain between Hulett and Rolando Medina, July 22, 2016). On July 22, 2016, FedEx attempted to send Plaintiff a letter to an old address stating it was in receipt of her discrimination complaint. (Exhibit 35, Letter from FedEx to Plaintiff, July 22, 2016). Another five (5) days later, on July 27, 2016, Ms. Hulett met with Ms. Maldonado in St. Croix to allegedly interview her about her complaints. (Ex. 10, Hulett’s Recorded and Transcribed Interview with Ms. Maldonado). In sum, FedEx waited twelve (12) days from the date of Plaintiff’s first report of sexual harassment on July 15, 2016, for the company to investigate her complaints. (Ex. 34; Ex. 10). FedEx’s policy requires immediate reporting and investigation into discrimination complaints. (Ex. 8, Ex. 20, Ex. 27; see also Exhibit 7, Anti-Harassment Policy at 48-49). Ms. Hulett gave Plaintiff a Letter of Suspension that informed Plaintiff she had been suspended as of July 15, 2016, the date she first reported the discrimination to FedEx. (Ex. 10 at 218-222; Exhibit 36, Letter of Suspension to Plaintiff). Plaintiff questioned Hulett as to why, if she was the one making the complaint of sexual harassment and retaliation against her manager, she was being placed on suspension. (Ex. 10 at 221). Hulett told Plaintiff that “each investigation is different” and that FedEx was suspending her to “protect [her] from the workplace.” (Ex. 10 at 222). Hulett’s statement contradicts FedEx’s Policy, which states that “Management may suspend an employee with pay to investigate possible conduct or performance issue violations.” (Exhibit 7, 11 FedEx already had a report of Camacho’s sexual conduct at work from Joseph Bass’ 2014 Complaint, (Ex. 20), and Bass’ testimony in 2015 that Camacho was having a personal relationship with Natacha Maldonado. (Ex. 21 at 230). 12 FedEx has declined to produce claimed privileged documents that would show what Defendant intended to investigate when Hulett was sent to interview Plaintiff. Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 33 of 46 Page 34 Employee Handbook, Investigative Suspensions, 46). FedEx never informed Plaintiff during the interview or phone calls, that FedEx was actually investigating Plaintiff for workplace violence. (Ex. 10 at 211-213, 222). 49. Security investigated the workplace violence, and human resources investigated allegations of sexual harassment and inappropriate relationship. 6/12/18 Hulett Dep. 50:23-51. Plaintiff was interviewed by Colon on July 18 and 20. 5/16/18 Maldonado Dep. 183:13-18. Plaintiff was interviewed by Hulett on July 27, 2016. Id. 183:19-21. RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 4 above. 50. Camacho was interviewed on July 19, and hourly employees were interviewed on July 19. Hulett Dep. 59:15-13, 60:5-11; Colon Dep. 104:12-16; Ex. 34, pp. 2-3 (two interviews with Plaintiff). Security took statements from employees Browne, Andrews, Williams, Mutidi and Powell. 6/12/18 Hulett Dep. 66:13-67:19, Ex. 27. Colon interviewed Plaintiff at the Buccaneer Hotel; took written statements from employees; watched the video tape at the station; reviewed documents; and prepared a written report. Colon Dep. 29:15-21, 47:14-48:4, 62:10-63:11, 111:9- 112:1, Ex. 34 (7/18/16 Colon Report). RESPONSE: Disputed. See LRCi 56.1(b). See Response to No. 49 above. 51. Plaintiff admitted to Colon that she and Camacho exchanged gifts, and actively kept their relationship a secret. Colon Dep. 125:17-24, 126:9-12. As to the workplace violence, Plaintiff admitted she pushed Camacho and threw a phone at him. Q: [Colon] And when I saw something, I saw, wow, this is pretty bad. I saw you hit him. A: I pushed him, yes. I remember pushing him. Q: Okay. And then you threw a phone. A: Yea, I threw a phone. Attachment 13, 7/20/16 Transcribed Security Interview with Maldonado, 42:5-25. RESPONSE: Disputed. See LRCi 56.1(b). The “relationship” was not a secret and Plaintiff did not willfully and intentionally violate any workplace violence policy. See Response to No. 21, 41 and 57 above. Plaintiff admitted to throwing a phone but did not admit throwing it at Camacho and indeed the phone was thrown at the wall. (Ex. 1 at 83-84, 108, 164; see also Ex. 10 at 127-128, 176). 52. Plaintiff told security (Colon) that she was upset with Camacho because he would not return her phone calls. Colon Dep. 94:11-21. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff was upset because Camacho was blocking her calls to his Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 34 of 46 Page 35 FedEx phone, which interfered with her ability to do her job. (Ex. 1 at 108; Ex. 10 at 174-175). See RSOF No. 57. On July 13, 2016, at the FedEx office, Plaintiff asked Camacho to stop asking her personal questions and stop interfering with her personal life. (Ex. 10 at 143-144, 155-156). When Plaintiff went to pick up her kids at her sister’s house that night, July 13, 2016, Camacho stalked her, following behind her car in his Jeep. (Ex. 10 at 158-159). Plaintiff was “sick and tired” of him stalking her. (Id. at 160). Plaintiff was forced to pull over to the side of the road in the dark and Camacho approached her vehicle, asking her more personal questions. (Ex. 10 at 161-162). She was tired of the stress, and of feeling uncomfortable at work and requested that Camacho agree to leave her alone, give her respect at work, have only a professional relationship, and stop harassing her. (Ex. 10 at 163-166). Camacho was trying to kiss and touch Plaintiff while she was asking him to end any personal relationship, and she rejected him. (Ex. 10 at 166). She believed they came to a mutual agreement that any personal relationship was over. (Ex. 10 at 166). The next morning, July 14, 2016, Plaintiff was looking forward to a nice, normal work day. (Ex. 23 at ¶ 63). She was running a bit late and tried to call Camacho’s FedEx phone to tell him she was going to be late as required by policy. (Ex. 10 at 169). The call went straight to voicemail. Plaintiff tried again, and the call went straight to voicemail; Plaintiff left a message about being late. (Ex. 10 at 169-170). When she arrived at FedEx on July 14, 2016, Camacho cornered her in his office saying he needed to speak to her and began badgering Plaintiff with personal questions. (Ex. 10 at 168, 171-173; Ex. 29, Pl’s Statement to FedEx at 5, July 19, 2016). He pressured Plaintiff to tell him if she was seeing someone else, if she was interested in anyone else, and whether she had already moved on. (Id.) In distress, Plaintiff had an emotional breakdown at work and began crying. (Ex. 10 at 172; Ex. 29 at 5). Plaintiff refused to answer and told Camacho to leave her alone. (Ex. 10 at 173). She told Camacho he was taking advantage of her and using his authority to control and manipulate her. (Ex. 29 at 5; see also Ex. 10 at 172-173). Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 35 of 46 Page 36 53. Colon watched the motion-activated video from July 12 and 14 which revealed that (1) while in the warehouse Plaintiff threw a cell phone at Camacho; (2) employee (Omar Mutidi) intervened and physically restrained and pulled Plaintiff out of Camacho’s office, Colon Dep. 48:5- 19, 49:24-50:1; and (3) on July 14 Plaintiff was seen “confronting Camacho several times in the warehouse area,” pointing her index finger toward Camacho’s face, “hitting Camacho in the upper left shoulder area-near his face,” and throwing a cell phone towards him, Colon Dep. 59:15-13, 60:5- 11, Ex. 34, p. 4. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff did not throw the cell phone at Camacho. She threw the cell phone at the wall, not at anyone, where it fell, and the battery came out. The phone did not break. (Ex. 1 at 83-84, 108, 164; see also Ex. 10 at 127-128, 176). Omar Mutidi testified that on July 12th, Camacho and Plaintiff were both “yelling and arguing at each other” when he escorted Plaintiff out of Camacho’s office. (Ex. 9 at 36). Kelva Andrews stated that Omar Mutidi took Camacho outside to the warehouse and Mr. Camacho was telling Ms. Maldonado “nobody can’t slap me who do they be.” (Ex. 32, Employee Statements). Plaintiff told Security, Vic Colon, that Camacho was angry, yelling at her loudly, and causing a scene in his office on July 12, 2016. (Ex. 31 at 39). Camacho had a “loud outburst” directed at Plaintiff. (Ex. 31 at 40-41). Camacho began shouting and cursing and said to Plaintiff, “I will bury him, and I will bury you,” which Plaintiff understood to be a death threat because Camacho had made death threats in the past, threatening to kill her if she ever “fucked” with his career at FedEx. (Ex. 10 at 115-116; Ex. 23 at ¶ 61). Camacho got out of his chair and came toward Plaintiff pointing his finger at her. (Ex. 31 at 42). Camacho was shouting about how Plaintiff’s ex wants to slap him for disrespecting Plaintiff. (Ex. 31 at 43-44). Plaintiff told Mr. Colon that FedEx should look at the surveillance camera to see how Omar Mutidi grabbed Plaintiff and took her to her desk to get her away from Mr. Camacho, who was advancing on her. (Ex. 31 at 44). Omar Mutidi told Plaintiff to stay in her chair because the more Camacho saw her, the crazier he was behaving. (Ex. 31 at 44). Camacho then went in the warehouse and was louder there. (Id. at 45). He kept cursing and saying, “He can’t slap me.” (Id. at 46). Plaintiff was afraid she could lose her job because Camacho would not calm down and continued Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 36 of 46 Page 37 verbally threatening her. (Ex. 10 at 116-117). Plaintiff put her hand on him to calm him, and get him away from her, and he shouted at her. (Id.). 54. No one, including Camacho, had access to the motion-activated video equipment. Colon Dep. 50:21-51:1, 51:24-52:1. RESPONSE: Disputed. See LRCi 56.1(b). Camacho spied on Plaintiff at work, rewinding the FedEx surveillance cameras to view footage of Plaintiff interacting with customers, then accusing her of speaking to male customers for too long a period or taking their phone numbers. He told her, “I saw everything.” (Ex. 1 at 100-101; Ex 16 at 13, ¶ 5-6). Mr. Camacho was able to persuade a FedEx security technician, Rafael, to give him the ability to view the security cameras and even rewind the footage from his desk. (Ex. 16 at 13). 55. The first time Plaintiff disclosed the details of what happened on October 11 was during her interview with Hulett on July 27, 2016. 5/16/18 Maldonado Dep. 55:8-11. Everything Plaintiff said to Hulett was captured on the recording during the interviewed by Hulett at the Buccaneer Hotel. 5/16/18 Maldonado Dep. 61:22-62:21. RESPONSE: Disputed. See LRCi 56.1(b). See Response No. 31, above. 56. Plaintiff admitted she told Hulett during the July 27 interview: (1) she has a good relationship with Mondesir, “he’s really cool,” talked to him on the phone, everybody admires Mondesir and looks forward to his visit, and feel that you can reach out to and very comfortable with him; (2) she has a very good relationship with her managing director and can reach out to him and comfortable with him; (3) she felt comfortable with Hulett and has a good relationship with her, feel she can always take issues to her, and been very helpful and responded to emails; (4) she looked in FedEx policies and determined that having a relationship with Camacho was against FedEx policy; (5) Even with what happened on October 11, she felt comfortable around Camacho; (6) Camacho gave her and the children gifts and she (Maldonado) was appreciative; (7) said Camacho is not a bad person and in 2012 grew into a relation with him; (8) she got pregnant for Camacho; (9) and with the interview taking place on July 27, 2016, until recently had sexual relations with Camacho; (10) she understands company policy and procedure written in the handbook and People manual and have a copy of the people manual at her desk; (11) she is familiar with the acceptable conduct policy, open door and workplace violence policy and internal IEEO complaint policy, and sexual harassment policy; and (12) she did not use any of the internal tools available to her to complain about the relationship between her and Camacho. 5/16/18 Maldonado Dep. 64:15-65:1, 65:10-67:23, 68:9-11, 69:11-21, 69:22-25, 70:5-13, 71:10-15, 73:1-15. RESPONSE: Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 37 of 46 Page 38 Disputed. See LRCi 56.1(b). These alleged “admissions” are presented out of context. See Responses to Nos. 3, 8, 11-14, 16, 18, 31 and 38 above. 57. Based on the interview transcript Plaintiff also admitted: (1) she is familiar with Sec. 2-5 acceptable conduct policy, guaranteed fair treatment procedure, workplace violence policy, and sexual harassment policy, Attachment 14, 7/27/16 Interview Transcript with Maldonado, 19:13-7; (2) admitted she knows what constitutes workplace violence – “acting violently and . . . probably . . . looking to put their hands on somebody,” Id. 122:11-16; (3) was trained on workplace violence in January 2013, March 2014 and September 2015, received the training “a few times,” and knew she had resources available to go to apart from Camacho to report workplace violence, Id. 122:17-24, 125:2-23; (4) she described her behavior as workplace violence, Id. 126:25-127:2; (5) that she “took the phone and I threw it . . . because I was upset[,] I was like really upset[,] I was like upset so I threw it,” Id. 176:6-15; (6) she was wrong for throwing the phone, company property, and was destruction of company property in violation of policy, Id. 176:17, 216:7-11; (7) she pushed and shoved Camacho and such behavior is considered workplace violence, Id. 176:18-20, 216:1-6; and (8) her behavior is considered workplace violence, Id. 176:21- 24. RESPONSE: Disputed. See LRCi 56.1(b). Plaintiff did not willfully or intentionally disobey FedEx’s rules regarding workplace violence as she was under duress from FedEx manager, Dean Camacho’s on- going sexual harassment and abuse and she was having a mental and emotional breakdown at work and was trying to leave for the day, but Mr. Camacho blocked her calls to his work phone, which sabotaged her job and told her she could only leave if she kept in touch with FedEx in case any Dangerous Goods came in that she needed to clear. (Ex. 10 at 185). As she was packing up to leave, Camacho was out in the warehouse and Plaintiff tried to call Camacho’s work phone from her cell phone to tell him some work-related information, but it again went straight to voicemail without ringing. (Ex. 10 at 173-175). She tried again, and the same thing happened. (Id.). Plaintiff figured out that he had blocked her calls to his FedEx phone. (Ex. 10 at 174-175). Plaintiff asked Camacho why he was blocking her work calls on his FedEx phone and how is she supposed to check in if he blocked her. (Id.). Plaintiff told Camacho that it was unfair as she was still an employee of FedEx. (Id.). Camacho brushed off Plaintiff saying that something must be wrong with the A T & T service, which is why she couldn’t get through. (Ex. 1 at 174). Plaintiff asked him if he was lying to her “as usual.” (Id.). Ms. Maldonado was distraught that Camacho was blocking her phone, which Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 38 of 46 Page 39 interfered with her ability to do her job. (Ex. 1 at 108; Ex. 10 at 174-175). Camacho was being “spiteful” toward her after she ended their involvement by using his authority as her manager. (Ex. 10 at 96-97). Ms. Maldonado asked Adam Powell to borrow his cell phone, but Powell was leaving to go out on a route. Plaintiff grabbed the nearest FedEx cell phone and dialed Camacho’s work cell, which began ringing and ringing, confirming that Camacho had blocked her number on his FedEx phone, but it rang when dialed from another phone. (Ex.10 at 174-175). Plaintiff asked Camacho why would he block her? Why was he lying to her? Why was he playing a game? (Ex. 10 at 175). Plaintiff was traumatized by Camacho’s work-related lies, his sabotaging her job by blocking her work calls, on top of the personal badgering she’d just had to undergo in his office a few minutes prior that resulted in her crying, in addition to years of erratic work conditions under Camacho’s thumb, that Plaintiff mentally and emotionally snapped. (Ex. 10 at 175-176; Ex. 23 at ¶¶ 67-70). She threw the cell phone at the wall, not at anyone, where it fell, and the battery came out. The phone did not break. (Ex. 1 at 83-84, 108, 164; see also Ex. 10 at 127-128, 176). Plaintiff attested, “I did not intend to yell or curse at him. I did not intend to throw a cell phone at a wall. I did not want to do anything but have a nice normal work day free from Camacho interfering with me.” (Ex. 23 at 71-74). Camacho’s blocking of her calls to his FedEx number, which she needed in order to check in about the Dangerous Goods, sabotaged her job. (Ex. 10 at 94-99). In addition, FedEx violated its own workplace violence policy when it failed to investigate Camacho for sexual encounters with female subordinates, including Ms. Maldonado, after Joseph Bass reported it in 2014 and 2015 under oath. (Ex. 20, Bass Complaint at ¶13; Ex. 21, Bass Depo at 230). FedEx failed to terminate Camacho for sexually abusing and raping Ms. Maldonado in October 2011. (Ex. 40). Plaintiff informed Vanesa Hulett, “He raped me. He inserted his penis into my vagina.” (Ex. 10 at 50). FedEx did not terminate Camacho for violating its Workplace Violence Policy. (Ex. 40). Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 39 of 46 Page 40 58. During its investigation human resources (Hulett) reviewed the surveillance video. 6/12/18 Hulett Dep. 37:11-25. RESPONSE: Undisputed for purposes of summary judgment only. See LRCi 56.1(b). But this fact is immaterial. 59. Camacho admitted to being the father of Plaintiff’s twin boys, 6/12/18 Hulett Dep. 58:8- 16, but denied that the first sexual contact was anything but consensual. 6/12/18 Hulett Dep. 60:2- 61:10. No determination was made as to when the physical relationship between Plaintiff and Camacho ended because they both gave different stories. 6/12/18 Hulett Dep. 64:9-11. RESPONSE: Disputed. See LRCi 56.1(b). Camacho falsely claimed he only had sex with Plaintiff “about a dozen times,” for a total of five to six months between late October 2013 to early 2014, and that he did not believe the twins were his sons, and that his first sexual encounter with Plaintiff was consensual. (Ex. 5, Camacho Depo I at 16, 18-19, 103, 239). Camacho contradicts himself directly. (Ex. 42, Camacho Depo II at 27-28)(Camacho admits he and Plaintiff texting about sex they had in the office the week prior to September 22, 2015). Camacho attended the baptism of the twins with Ms. Maldonado, where his aunt, Norma Camacho was the children’s godmother, and a professional photographer was hired to take photographs and he told the photographer he was the twins’ father. (Ex. 42 at 17-19, 44, 47-48). Plaintiff referred to the rape as “our little secret” in a text message to Camacho, when she and Camacho were texting about her dating guys if she was single. Camacho texted, “all those dates and no sex, those guys would have been aggressive for sex” and “they would have taken it.” Plaintiff responded, “that would have been considered rape,” like “our little secret.” (Ex. 2 at 86-87; Ex. 42 at 63-64). 60. Human resources was unable to confirm Plaintiff’s allegations that Camacho sexually harassed her. 6/12/18 Hulett Dep. 49:18-23, 57:6-12. Despite a very comprehensive investigation by human resources, there was conflicting information and no one substantiated either Plaintiff’s or Camacho’s allegations. Attachment 15, 8/21/18 Lopez Virtue Dep. 60:17-61:5. RESPONSE: Disputed. See LRCi 56.1(b). FedEx did not investigate Plaintiff’s complaint of sexual harassment by her manager pursuant to FedEx’s policies, or in a sincere, responsive manner in keeping with its alleged policies. See RSOF No. 4. Further, Camacho admitted he violated FedEx’s Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 40 of 46 Page 41 policies on sexual harassment. He testified, “I will without any reservation acknowledge that I violated the policy, and so because I did that, I'm conscious enough to know that I won't be eligible for rehire.” “Q. What policy or policies did you violate?” “A. Sexual harassment policy.” (Ex. 5, Camacho Depo I at p. 93.) 61. Both Plaintiff and Camacho were terminated on August 26, 2016. Skertich Decl., ¶ 13; 5/16/18 Maldonado Dep. Ex. 14 (termination letter), Ex. 15 (Camacho termination letter). With the support of human resources (Lopez Virtue, Hulett, Rene Garcia) and legal (Grace Skertich, Maria Fellu), Kennel Mondesir and Rolando Medina made the joint decision to terminate Plaintiff and Camacho. 6/12/18 Hulett Dep. 59:7-20; 8/21/18 Lopez Virtue Dep. 53:20-54:18, 63:12-64:6. RESPONSE: Disputed. See LRCi 56.1(b). See Responses to Nos. 21, 23, 24, 26 above. 62. Human resources and legal (Skertich) concluded the relationship was consensual based on the frequency in which Plaintiff initiated contact with Camacho; the nature of their contact and communications; the length of time between the inception of the relationship and the reporting of harassment to human resources; and the fact that Plaintiff later recanted some of her initial allegations—which ultimately affected her credibility. Skertich Decl., ¶ 10. RESPONSE: Disputed. See LRCi 56.1(b). The relationship between Plaintiff and Camacho was not consensual. See Reponses to Nos. 27-31, 33-36. Further, Camacho admitted he violated FedEx’s policies on sexual harassment. He testified, “I will without any reservation acknowledge that I violated the policy, and so because I did that, I'm conscious enough to know that I won't be eligible for rehire.” “Q. What policy or policies did you violate?” “A. Sexual harassment policy.” (Ex. 5, Camacho Depo I at p. 93.) 63. Plaintiff’s outburst against Camacho was not the first such outburst because the investigation uncovered that there was a history of workplace violence initiated by Plaintiff. 8/21/18 Lopez Virtue Dep. 64:16-25. There were several statements that she had a very aggressive and bullying-type of behavior at the station. Id. 65:16-66:1. RESPONSE: Disputed. See LRCi 56.1(b). FedEx’s Managing Director of Human Resources, Esperanza Lopez- Virtue testified that the entire basis for Plaintiff’s termination is contained in her Termination Letter and she was not terminated for any reason other than that set forth in her Termination Letter. Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 41 of 46 Page 42 (Exhibit 11, Esperanza Lopez-Virtue Depo, August 21, 2018, at 11, 74; Ex. 41, Pl’s Termination Letter). Plaintiff’s Termination Letter does not mention any “history of workplace violence initiated by Plaintiff” and does not mention the Letter of Concern, thus this SOF is irrelevant and misleading. (Ex. 41). FedEx has not supported this allegation of a history of workplace violence with any documentation of who made these alleged statements, when they were made, whether Plaintiff was interviewed or investigated about the alleged statements, what incidents are being referred to in the alleged statements, or when they were reported. Id. FedEx’s Policy is to investigate only complaints that are filed; FedEx has no previous complaints of workplace violence filed against Plaintiff during her ten years of employment. (Ex. 11 at 65-66). FedEx management is required to document any verbal counseling of an employee in FedEx’s Online Documented Compliment/Counseling OLCC) system. (Exhibit 4, People Manual, § 2-5, at p. 83). “[C]ounselings must be documented in the intranet OLCC system even if no separate written memo or synopsis of the discussion was prepared by the manager.” (Id.) Plaintiff’s OLCC History states that there was no other counseling for Plaintiff, as the search says “No Records Found”. (Exhibit 3, Plaintiff’s OLCC History). It was a violation of FedEx’s People Manual for FedEx to consider any alleged undocumented infractions or counseling as a factor in terminating Plaintiff because according to the People Manual, only “[a] documented counseling OLCC entry . . .may be considered as a factor when determining whether discipline is warranted.” (Id.). Further, FedEx’s SOF No. 67 defines Plaintiff’s past “workplace violence” as being only one Letter of Concern that Camacho issued to Plaintiff in July 2015, which was also issued to Sylvia Browne regarding an incident of a verbal altercation between the two. (See Response to SOF No. 67, below; see also Response to No. 65 below). Ms. Browne was not terminated or further disciplined for that verbal altercation, and FedEx promoted Browne in 2017. (Ex. 17, Browne Depo at 11-12). 64. Camacho had no involvement in her termination decision, whatsoever. Skertich Decl., ¶ 13. Nothing said by Camacho was factored into the decision to terminate. Skertich Decl., ¶ 14. RESPONSE: Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 42 of 46 Page 43 Disputed. See LRCi 56.1(b). Plaintiff was terminated by her Manager, Dean Camacho, on July 14, 2016. (Ex. 10 at 188-189; see also Ex. 26, Camacho Email, July 14, 2016). FedEx ratified his action and confirmed her termination on August 26, 2016. (Ex. 41, Pl’s Termination Letter). 65. Due to FedEx’s zero tolerance approach to workplace violence, legal (Skertich) advised termination for every single employee who has intentionally and aggressively come in contact with another employee on company property or company time. Skertich Decl., ¶ 13. RESPONSE: Disputed. See LRCi 56.1(b). Fed Ex’s ability to terminate an employee is governed by the Virgin Islands Wrongful Discharge Act and there must be a willful and intentional violation of a reasonable policy. (Ex. 49, FedEx Interviewer Notes); See 24 V.I.C. 76(a)(4). FedEx has not terminated others in the St. Croix station who were found to have been involved in hostile altercations at work. Sylvia Browne was issued a Letter of Concern for engaging in a verbal altercation with Ms. Maldonado in July 2015. (Ex. 1 at 108-109). Plaintiff testified that Sylvia Browne harassed her constantly at work, cursed at her in the office, told her to “sit her ass down,” and behaved in a loud, angry, and hostile manner towards Plaintiff and others at FedEx. At one time, Ms. Browne followed Plaintiff to her cubicle and Plaintiff felt Browne would attack her if Camacho and Omar Mutidi did not intervene. (Ex. 1 at 110-112). FedEx did not terminate Browne for receiving a Letter of Concern regarding workplace violence. FedEx did not terminate Ms. Browne for her angry, hostile, volatile behavior at work toward Ms. Maldonado. Instead, FedEx promoted Browne in March 2017 to “Operational Coordinator” overseeing all of the St. Croix employees. (Ex. 17, Browne Depo at 11- 12). Similarly, On June 29, 2012, FedEx issued two Warning Letters to FedEx employees Omar Mutidi and Joseph Bass in the St. Croix station for “Disruptive Conduct.” (Exhibit 51, Warning Letter to Joseph Bass, June 29, 2012, copied to K. Mondesir and Vanesa Hulett). The Warning Letter states that “after performing a complete investigation” FedEx found that Mr. Bass and Mr. Omar Mutidi had both “engaged in a confrontation” and “used intimidating, disrespectful and abusive language towards each other in front of other employees on company property while on Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 43 of 46 Page 44 duty.” (Ex. 51). The Warning Letter also states, “Your actions were disrespectful and created a hostile work environment.” (Ex. 51). Mr. Bass testified that Omar Mutidi had threatened his life and that Human Resources investigated, questioned him and the other employees, and issued the disciplinary letters based on the altercation. (Ex. 21 at 154-160). FedEx did not terminate either Joseph Bass or Omar Mutidi for engaging in this hostile altercation where Omar Mutidi had threatened Bass’s life and abusive and intimidating language was used. (Id.) 66. Plaintiff appealed her termination under Sec. 5-5 of FedEx’s guaranteed fair treatment appeals procedure. 5/16/18 Maldonado Dep. 159:23-160:9, Ex. 18. Her termination was upheld. Id. 160:2-21, 162:18-24, Ex. 20. RESPONSE: Undisputed for purposes of summary judgment only that there was an appeal of the termination. See LRCi 56.1(b). Plaintiff objects to FedEx’s characterization of the appeal procedure as “guaranteed fair treatment. 67. Camacho was terminated for leadership failure because (1) he did not report his personal relationship with Plaintiff, and (2) Plaintiff in the past had engaged in workplace violence and Camacho did not follow policy in reporting the same to upper management and human resources. 6/12/18 Hulett Dep. 54:13-55:2, 55:10-16. As to the latter, Camacho merely issued Plaintiff a letter of concern that was not forwarded to human resources. 6/12/18 Hulett Dep. 55:17-57:19. RESPONSE: Disputed. See LRCi 56.1(b). FedEx’s reasons for terminating Camacho are relevant for Plaintiff’s claims of wrongful discharge and sexual harassment and hostile work environment. Camacho admitted he violated FedEx’s policies on sexual harassment. He testified, “I will without any reservation acknowledge that I violated the policy, and so because I did that, I'm conscious enough to know that I won't be eligible for rehire.” “Q. What policy or policies did you violate?” “A. Sexual harassment policy.” (Ex. 5, Camacho Depo I at p. 93.) 68. Camacho was not treated any more favorably than Plaintiff. As to the treatment of Camacho by FedEx, Plaintiff admitted he was not treated any more favorable and he was also terminated. 5/16/18 Maldonado Dep. 184:9-20. RESPONSE: Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 44 of 46 Page 45 Undisputed, but immaterial to summary judgment. See LRCi 56.1(b). RESPECTFULLY SUBMITTED, LEE J. ROHN AND ASSOCIATES, LLC Attorneys for Plaintiff DATED: May 17, 2019 BY: /s/ Lee J. Rohn Lee J. Rohn, Esq. VI Bar No. 52 1101 King Street Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 lee@rohnlaw.com Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 45 of 46 Page 46 CERTIFICATE OF SERVICE THIS IS TO CERTIFY that on May 17, 2019, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Brandie N. Smith, Esq. Frederick L. Douglas, Esq. Patrick Daniel Riederer, Esq. Robbin W. Hutton, Esq. Federal Express Corporation 3620 Hacks Cross Road Building B, 3rd Floor Memphis, TN 38125 Email Address: brandie.smith@fedex.com; frederick.douglas@fedex.com; daniel.riederer@fedex.com; denise.armstrong@fedex.com; shelia.mattison@fedex.com; robbin.hutton@fedex.com Attorney For: Federal Express Corporation Charles E. Engeman, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, LLC The Tunick Building 1336 Beltjen Road, Suite 201 St. Thomas, VI 00802 Email Address: charles.engeman@ogletreedeakins.com Attorney For: Federal Express Corporation BY: /s/ Lee J. Rohn (dvn) Case: 1:17-cv-00039-WAL-GWC Document #: 130 Filed: 05/17/19 Page 46 of 46
