Maldonado v. Federal Express Corporation

REPLY to Opposition to Motion re MOTION for Summary Judgment , 119 Statement of Undisputed Facts in Support of Motion,

D.V.I.June 13, 2019

1 IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX NATACHA MALDONADO, ) Plaintiff, ) v. ) Case. No. 1:17-CV-39 ) FEDERAL EXPRESS CORPORATION, ) Defendant. ) ) ______________________________________________________________________________ DEFENDANT’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant, Federal Express Corporation (FedEx), submits this reply memorandum in support of its Motion for Summary Judgment [Doc. 118, 119]. Overview Plaintiff was in a secret consensual relationship with her manager. She violated two FedEx policies and was terminated. Her acts of workplace violence are inexcusable. Workplace violence should not be excused because of argument of counsel and retained “experts,” speculation about who knew what, or “junk science” under the name of “coercive control.” None of these litigation strategies create material facts necessitating a need for trial. Plaintiff’s opposition to the summary judgment [Doc. 129], and response to FedEx’s Material Statement of Facts [Doc. 130], are littered with misleading assertions not supported by record. This strategy fails to create any material issues of fact. For example, on her termination for workplace violence, Plaintiff asserts some four times in her response to FedEx’s material statement of facts: “Plaintiff threw the cell phone at the wall, not at anyone[.]”Plt. Resp. MSF, Doc. 130, p. 3 (emphasis added); see also pp. 34, 36, 39. That is misleading. Plaintiff testified under oath: Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 1 of 13 2 Q: [Mr. Douglas, counsel] And you admitted during that interview with [FedEx Security] that you pushed Camacho, right? A: Yes. Q: And you admitted to [security] that you threw the cell phone at him? A: Yes. FedEx MSF, Doc. 119-3, Maldonado Dep. p. 83:17-22 (emphasis added). She also testified, “[t]he day with the . . . profanities, that I remember saying, `your f-ing lying ass,’ was when I throw the phone after him, and that’s on the 14th.” Id. p. 134:10-13 (emphasis added). As demonstrated below, FedEx is entitled to judgment on all claims because there are no material issues of fact. Argument: There are No Material Issues of Fact A. The Applicable Standard – “Dispute as to Any Material Fact” – Governs the Issues and Importance of the Facts. The standard is one of “dispute as to any material fact.” Fed. R. Civ. P. 56(a) (emphasis added). The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." DeHart v. Horn, 390 F.3d 262, 267 (3rd Cir. 2004), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, a fact is material when its resolution might affect the outcome of the suit under governing law and a dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. The Supreme Court defines an "issue of material fact" as a question which must be answered in order to determine the rights of the parties under substantive law and which can only properly be resolved "by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250; see also Justofin v. Metro. Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004) ("A fact is material when its resolution 'might affect the outcome of the suit under the Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 2 of 13 3 governing law,' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"). As the U.S. Supreme Court ruled, "[t]he mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252. Simply put, "[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Here, one clear example of something so immaterial it serves no legitimate purpose is the assertion, “[d]espite Plaintiff working for FedEx for ten years, FedEx terminated Plaintiff by phone on August 26, 2016.” See Plt. Resp. MSF, Doc. 130, p. 4 (emphasis original). Such meaningless arguments and assertions dominate Plaintiff’s opposition to FedEx’s motion for summary judgment. It belies logic to assert that trial is warranted because a material issues of fact is created because Plaintiff was terminated by phone. What is material, is that Plaintiff was terminated by someone other than Camacho and was terminated for workplace violence. Plaintiff willfully and intentionally disobeys reasonable and lawful rules, orders, and instructions of FedEx which is one of the nine enumerated reasons permitting termination in 24 V.I.C. § 76(a)(4). The governing law is clear. This entire lawsuit rest on whether Plaintiff disobeyed FedEx’s reasonable and lawful rules, order, and instructions. Plaintiff agrees. See, Doc. 129, Opposition Brief, p. 2. Further, the other central issue is whether the workplace was permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 3 of 13 4 The Occupational Safety and Health Administration Act of 1970 requires employers to provide a workplace for employees that is “free from recognized hazards that [may] cause death or serious physical harm.” Plaintiff herself examined FedEx policies and determined that having a relationship with Camacho was against FedEx policy. MSF ¶ 26. B. “Junk Science” Does Not Create Material Issues of Fact. To create material issues of fact, and avoid addressing the undisputed material facts that Plaintiff willfully and intentionally entered a consensual sexual relationship with Camacho, Plaintiff relies on the “junk science” of coercive control espoused by Lisa Fontes, Ph.D. The fact that FedEx, a publicly traded corporation, decided not to expend resources for a competing expert in the area of coercive control, which is not even recognized in the legal field, is not a material issue of fact. FedEx’s decision not to retain its own expert on “junk science” is no more a material fact than arguments of counsel, speculation or conclusions. FedEx’s Daubert motion [Doc. 125] and supporting reply memorandum [Doc. 142], articulate in great detail why the opinions offered by Plaintiff’s “expert” does not meet the qualifications and reliability standards, or assist the jury in this case. Although the Court may bristle at referring to “expert” opinions as “junk science,” one only has to look to the record to reach that conclusion. Material facts ignored by Plaintiff’s “expert” demonstrate that Plaintiff and Camacho had consensual sex everywhere and at all times: the couple had sex on FedEx property 12-14 times, FedEx MSF, Doc. 119, ¶ 35(a); and six to eight times they had sex in FedEx vehicles, Id. ¶ 35(b). Four children were conceived from their sexual encounters. Id. ¶ 35(c). It defies logic, common sense and sanity to think that amount of sex and conception was anything but consensual. Once thing is certain: it was not “coercive control.” Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 4 of 13 5 What is a material fact is Plaintiff’s own sworn testimony as to how she, not Dr. Fontes or Plaintiff’s counsel, summarized her relationship with Camacho. Neither Dr. Fontes nor Plaintiff’s counsel contradict Plaintiff’s own testimony, nor can they. Two direct quotes, i.e., material facts, are worth noting – one, Plaintiff kept their relationship secret, and two, the sex was consensual and ongoing until the very end. Apart from arguments of counsel, and “junk science,” here are the undisputed material facts Plaintiff testified to: Q: [Douglas, counsel] From 2012 up through [May 16, 2018], have you told anyone at [FedEx] that between 2013 and 2015 you had sexual relations with Mr. Camacho 12-14 times after 6 p.m. on FedEx property? A: No. *** Q: And up to today [May 16, 2018] you had not told anyone at [FedEx] that you had sex – consensual sexual relations with Mr. Camacho in a FedEx vehicle between December 2012 and early 2016? A: No, I haven’t. FedEx MSF, Doc. 119-3, Maldonado Dep., pp. 16:2-6, 18:23-19:2. Q: [Douglas, counsel] All the sexual contact you’ve had with Dean Camacho after 2012, was it all consensual? A: After 2012, yes. After October 2012, yes. *** Q: . . . After October 2012 when was the last time you and Mr. Camacho had sexual relations whether on FedEx property or not? A: After 2012? Q: Yes. A: Some time in 2016. Q: Do you recall what month? A: Maybe June. Id. 44:24-45:10. As for the nonsense of “coercive control” – who cares what an “expert” claims when the party opposed to summary judgment admits she kept the relationship quiet, and more importantly, had been having sex with Camacho from 2012 through 2016, a few months before she was terminated? As for the speculation and arguments of counsel that some terminated employee Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 5 of 13 6 (Joseph Bass) suspected Plaintiff and Camacho were a couple: who cares what other people suspected when Plaintiff admits she kept it secret? Since when does an employee’s speculation about a relationship create material issues of fact? What others suspected is nothing but rank speculation that grossly fails to create any material issue of fact. It is undisputed that Plaintiff was in an extensive, consensual and exhaustive relationship with her manager, Camacho, and she kept it a secret. C. It Is Undisputed that Plaintiff Willfully and Intentionally Disobeyed FedEx’s Reasonable and Lawful Rules, Orders, and Instructions. 1. There are no material issues of fact that Plaintiff engages in workplace violence. Plaintiff does not dispute the existence of FedEx’s workplace violence policy, or the definition of workplace violence contained in that policy. See Plt. Resp. MSF, Doc. 130, p. 15. In response to FedEx’s written policy definition of workplace violence, Plaintiff states, “Disputed . . . See Response to No. 21 above.” There, the reader is inundated with arguments of counsel, composed of blanket denials and questions regarding the quality of an investigation. Therefore, the undisputed material facts demonstrate that FedEx’s 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. FedEx MSF, Doc. 119, ¶ 22. FedEx’s workplace violence policy is consistent with industry standards. See Warren v. Main Indus., 2018 U.S. Dist. LEXIS 225687, *8 (E.D. Va. June 19, 2018) (“For purposes of [workplace violence] policy, violence is defined as any act in which one person seeks to hurt or intimidate another through the use of physical contact or verbal harassment or manipulation.”); Tiller v. Int'l Auto. Components, 2015 U.S. Dist. LEXIS 9898, *5 Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 6 of 13 7 (N.D. Oh. Jan. 28, 2015)(employer policy defines threats or acts of violence as "any threatening behavior, acts of violence or any related conduct which disrupts another's work performance or the organization's business purpose," and identifies specific examples of conduct prohibited as "threats or acts of violence," including "[h]itting, shoving, or throwing an object at an individual."); Glaser v. Gap Inc., 994 F. Supp. 2d 569, 579 (S.D. N.Y. Jan. 2014)(policy defined workplace violence to include “threats or acts of violence, hitting or shoving”). Despite Plaintiff’s 46-page response to FedEx’s material statement of facts [Doc. 130], and 25-page memorandum [Doc. 129], no material issues of fact are created debunking FedEx’s true reason for terminating Plaintiff – workplace violence. Plaintiff’s own testimony about her conduct and engaging in workplace violence was clear and unmistakable. Here, material evidence is best handled by restating the questions posed to Plaintiff and her verbatim responses. Plaintiff herself admits the reasons for her termination – workplace violence. Q: [Mr. Douglas, counsel] So the first reason for which you were terminated was workplace violence, right? Q: Yes Q: And you would agree that there was a physical altercation between you and your manager, Dean Camacho? A: On July 14th, yes. FedEx MSF, Doc. 119-3, Maldonado Dep. p. 154: 17-22. Plaintiff admitted she pushed and threw a phone at another employee: Q: [Mr. Douglas, counsel] And you admitted during that interview with [FedEx Security] that you pushed Camacho, right? A: Yes. Q: And you admitted to [security] that you threw the cell phone at him? A: Yes. FedEx MSF, Doc. 119-3, Maldonado Dep. p. 83:17-22. Plaintiff went so far as to tell security: “So I pushed him. I shoved him.” Doc. 132-10, p. 176:9-10. She also said to security: Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 7 of 13 8 Q: [Vic Colon, FedEx security] 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. FedEx MSF, Doc. 119-16, 42:5-25. Plaintiff admitted to human resources her conduct constituted workplace violence: Q: [Hulett, HR Advisor] Would you describe your behavior as workplace violence? A: Yea. FedEx MSF, Doc. 119-17, 126:25-127:2. Plaintiff also admits to human resources throwing a phone and shoving: Q: Why did you throw the phone? A: because I was upset. I was like really upset. I was like upset so I threw it. Q: And that’s – A: I was wrong. Q: After you pushed him, right? A: Yea. Q: And that’s the behavior that you would consider workplace violence that you told me before? A: Right. Id. 176: 11-24. The above material facts conclusively demonstrates Plaintiff violated FedEx’s workplace violence policy. 2. There are no material issues of fact disputing that Plaintiff violated FedEx’s dating policy. 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. Plaintiff’s testimony is material on this point. There was nothing confusing or ambiguous to her about the prohibition. She testified: Q: [Mr. Douglas, counsel] [Sec. 4-50] says in the first paragraph, the last sentence `FedEx prohibits employees who are dating or otherwise involved in an intimate Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 8 of 13 9 relationship from working together in a direct reporting relationship.’ Did I read that correctly? A: Yes. Q: So, you and Dean Camacho were certainly dating between October 2013 and June 2016 – I’m sorry, July 2016. A: I would say start like dating would be 2013. *** Q: And he was your immediate manager, so you had a direct reporting relationship with him, right? A: Right. FedEx MSF, Doc. 119-3, Maldonado Dep. p. 158:3-11, 159:7-9. Therefore, there is no material issue of fact as to the second reason for Plaintiff’s termination. Remarkably, Plaintiff’s response to the material fact that, “Camacho was not treated any more favorable than Plaintiff . . . [and] admitted he was not treated any more favorable and he was also terminated” (FedEx MSF, Doc. 119, ¶ 68), was simply, “[u]ndisputed, but immaterial to summary judgment.” (Plt. Resp. MSF, Doc. 130, p. 44-45). This fact is absolutely material, and the second reason for Plaintiff’s termination (violation of dating policy) is now undisputed. Camacho was terminated for violation of FedEx’s dating policy, having a relationship with a subordinate. One of the same reasons for Plaintiff’s termination. This material fact demonstrates that FedEx has the policy and enforced it against both Camacho and Plaintiff. They were a couple. They received the same punishment. Camacho, the male in the relationship was treated no more favorably than Plaintiff, the female. FedEx’s termination of them for violating the policy now serves as a basis for Plaintiff’s sexual harassment claim, and the “junk science” known as “coercive control.” This is the reason for the policy’s existence – protect FedEx from frivolous lawsuits arising out of consensual relationships. For public policy reasons alone Plaintiff should not be allowed to reap the benefits of her willful violation of FedEx’s dating policy. But for the violation, there would be no claims of sexual harassment. Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 9 of 13 10 D. There are no Material Facts Establishing the Harassment Claim. Again, Plaintiff’s response to the material fact that, “Camacho was not treated any more favorable than Plaintiff . . . [and] admitted he was not treated any more favorable and he was also terminated,” was simply, “[u]ndisputed, but immaterial to summary judgment.” This fact is absolutely material. The ultimate punishment that can be levied by an employer for sexual harassment is termination. The alleged harasser was terminated. The nonexistence of sexual harassment was exhaustively discussed in FedEx’s memorandum [Doc. 118], and material statement of facts [Doc 119]. None of the material facts are at issue. Rather, Plaintiff relies on “junk science,” speculation and arguments by counsel to turn a four-year consensual sexual relationship into something it is not – “coercive control” and hostile work environment. As discussed in Sec. B above, the undisputed material facts demonstrate that the sex between Plaintiff and Camacho was purely consensual, ongoing and lasting. Further, during the time of the consensual sex, which she testified lasted over four years, the undisputed material facts demonstrate: Q: . . . Did Mr. Camacho ever say to you if you don’t have sex with me, I’m going to fire you? A: No. Q: Did he ever say to you if you don’t have sex with me, I’m going to issue you some type of disciplinary warning? A: No. FedEx MSF, Doc. 119-3, Maldonado Dep. p. 114:11-18. E. Arguments of Counsel are not Facts. The opposition is filled with unsupportable speculations, conclusions and arguments of counsel. "Unsupported speculation" cannot fulfill "a party's burden of producing some defense to a summary judgment motion." Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). It bears repeating, conclusory allegations based on subjective beliefs are insufficient to create a Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 10 of 13 11 genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). Arguments of counsel do not create material issues of fact. Here, Plaintiff’s arguments of counsel are deceptive and do not create material issues of fact. For example, Plaintiff’s assertion, “Plaintiff was terminated by her Manager, Dean Camacho, on July 14, 2016” and “FedEx ratified his action” (Plt. Resp. MSF, Doc. 130, p. 1), is debunked by the undisputed material facts. First, on a recording and July 14 email cited by Plaintiff, Camacho says on the recording, “just to confirm you did submit to FedEx your resignation letter,” and in the email “this is to confirm I’m in receipt of your resignation letter[.]” The words “termination,” “fire,” “discipline,” or “dismissal” are glaringly absent. There is no reference in either to involuntary termination. Second, the termination letter issued to Plaintiff came from her senior manager (Mondesir) not Camacho. Plaintiff testify to under oath: Q: [Douglas, Counsel] And it’s also Kenny Mondesir who terminated your employment, right? A: Right. FedEx MSF, Doc. 119-3, Maldonado Dep. p. 156:3-5. Speculation, arguments of counsel, and hyperbole cannot create material issues of fact when testimony is clear. As testified to by human resources: Q: [Hulett, HR Advisor] . . . but do you know who in management in operations made the decision to terminate Ms. Maldonado? A: Kennel Mondesir and Rolando Medina. FedEx MSF, Doc. 119-5, Hulett Dep., 59: 11-13. Plaintiff’s argument that “FedEx coerced Plaintiff’s `admission’ under false pretenses” (Plt. Resp. MSF, Doc. 130, p. 2) fails to create any material issues of fact because Plaintiff never denied acts of workplace violence. She now only takes issue with how the information was Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 11 of 13 12 obtained, what FedEx security “never told” her, and that human resources asked “leading questions” and told her “to write a statement” (Id. p. 3). None of these conspiracy assertions or arguments of counsel create material issues of fact. Conclusion WHEREFORE, FedEx requests that all claims be dismissed. DATED this 13th day of June, 2019. Respectfully submitted, By: s/ Charles E. Engeman Charles E. Engeman (V.I. Bar No. 498) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The Tunick Building, Suite 201 1336 Beltjen Road St. Thomas, VI 00802-4701 Telephone: (340) 714-1235 charles.engeman@ogletreedeakins.com AND s/Frederick L. Douglas Frederick L. Douglas (admitted pro hac vice) s/Robbin Wilson Hutton Robbin Wilson Hutton (admitted pro hac vice) s/Brandie N. Smith Brandie N. Smith (admitted pro hac vice) Federal Express Corporation 3620 Hacks Cross Road Building B, Third Floor Memphis, TN 38125 ATTORNEYS FOR DEFENDANT Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 12 of 13 13 CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of Defendant’s Reply Memorandum in Support of Its Motion for Summary Judgment has been served via ECF this 13th day of June, 2019, upon: Lee J. Rohn, Esq. Mary Faith Carpenter, Esq. Lee J. Rohn and Associates, LLC 1101 King Street Christiansted, St. Croix, VI 00820-4933 By: s/Charles E. Engeman Counsel for Defendant Case: 1:17-cv-00039-WAL-GWC Document #: 143 Filed: 06/13/19 Page 13 of 13