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April 14, 1999


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


Now pending before the Court are four motions: (1) Defendant Wal-Mart Stores, Inc.'s ("Wal-Mart") motion to amend its answer pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to include an additional affirmative defense; (2) Wal-Mart's motion for summary judgment on all claims of the Complaint pursuant to Rule 56; (3) Defendant Ossie Gee's ("Gee") motion for judgment on the pleadings pursuant to Rule 12(c) to dismiss certain of the claims against him personally; and (4) Gee's motion for summary judgment, pursuant to Rule 56 (and joined in by Wal-Mart), to dismiss an allegation of rape raised by the plaintiff at her deposition.


Plaintiff Kathy R. Moore ("Moore") was first employed by Wal-Mart in 1984 and worked at six different stores in four different states until she left Wal-Mart in 1991 to work for Office Depot. (Def. 56.1 Stmt. ¶ 1; Muzingo Aff. Ex. B at 17.) Moore was rehired by Wal-Mart in November 1995 for a position as the night shift merchandise manager in the Middletown, New York, Sam's Club. (Id. ¶ 3.)

At the time Wal-Mart rehired Moore, it had a standing policy against hostile environment and quid pro quo sexual harassment which included a complaint notification procedure, assurances of confidentiality, suggested steps to ensure prompt corrective/remedial action, and prohibitions against retaliation. (Id. ¶ 4.) The revised policy, dated December 10, 1995, stated, "It is recommended, but not required, that all complaints be in writing, describing in as much detail as possible" the dates of the conduct complained of, the parties involved, and the complainant's perception of the conduct. (Muzingo Aff. Ex. D.)

On April 25, 1996, Moore complained to Missy McKinley, general manager of the Middletown store*fn1, and Chuck Miller, Wal-Mart's director of operations, about alleged sexual harassment by Gee, co-manager of the Middletown store. At that time she provided Wal-Mart with a written statement:

    Around the end of March/beginning of April I
  attended a social gathering at the home of my GM
  [General Manager]. A situation derived from this
  night involving the Co-manager who was also at this
  party and myself. The boundary lines of a
  professional & personal relationship were
  overstepped-advancements were made. Nothing was
  mentioned to anyone else about this at this point to
  my knowledge or even discussed by the 2 of us. Right
  before inventory

  the Co-manager was on the closing shift, we were in
  the office & he ask[ed] me about that night and was
  making very light of it and tried to make contract
  with me in the coachs [sic] office.[.]
    I pulled away from him and ask[ed] him did he think
  I was joking when I speak so strongly about-sexual
  advances in our club and our company policy[.] I had
  just written a coaching on an individual a few days
  prior & wanted the Co. Mgr. to understand that the
  same Rules apply to all of us. My impression was that
  he really didn't care. This was wrong-I was very
  uncomfortable being put in that position in the work
  place & tried to make him realize he crossed the
  line. He told me that he could respect that-but I
  never could feel that comfort level & very nervous
  about being in a situation by myself here at the Club
  with him. I have made reasons for closing Team
  Leaders & other coaches to always be in our presence
  when he would close without really exposing the
  situation. I wasn't sure exactly how to handle the
  situations As far as using this Open door with my GM
  and didn't feel that the time was right-in all that
  was going on in our club it just wasn't a priority .
  . . there was inventory, huge floor moves & other
  issues this would take the back seat until everything
  else was back to everyday operations . . . My G.M.
  ask[ed] me during my 6 months review what had been
  wrong with me for the past 2 or 3 weeks that I didn't
  seem happy. I still didn't use the open door
  regarding this but did tell her that I would talk to
  her at a later time[.] We were dealing with other
  issues having to do with preventing dedicated
  partners from working off the clock & other things in
  everyday business. After all of these issues were
  handled I spoke with her about my fear & discomfort.
  The Co-manager had been on vacation & would be back
  on the closing shift, I couldn't go in that night &
  deal with these circumstances any longer so I told my
  G.M. everything. I cannot be at my best for me or the
  company when these circumstances exist. There have
  been situations involving "EGO & animosity" between
  the two of us that have direct reflection on our
  hourly partners. I get very nervous and
  ap[p]rehensive around him & can't cope with this type
  of environment not knowing what to expect. It is
  threatening to me. I don't want anyone[']s career
  threatened! I just want to address the situation with
  him again & have a member of management in our
  company at the time. I don't want this situation to
  go any further than in the pres[e]nt company or noted
  any further than Jeff Wright [Wal-Mart's regional
  personnel manager]. I want the working environment to
  be more pleasant & have it understood that I'm here
  for one purpose my career both mine & the future of
  the company. I don't want this situation addressed
  without me but want to face it straight forward with
  Chuck Miller pres[e]nt at the time. Again Thank you
  for the use of our Open Door Policy.


Kathy R. Moore


    I want it known that this is not a detailed
  statement of every single comment or action that has
  taken place regarding this situation nor does it
  intend to give any explicit details at this time if
  ever. This is only a general statement as to the
  nature of my complaint & the utilization of the open
  door policy to try & gain a resolution. I put my
  ultimate trust in [the] Company in Chuck & Missy &
  feel confident that this will be addressed 7 that I
  will have no fear of retaliation in regards to this

(Muzingo Aff. Ex. E (ellipses in original).)

Chuck Miller and Jeff Wright requested a more detailed statement from Moore, and on May 1, 1996, she provided another written statement:

    I did confront him after having informed you both
  of the situation. I've tried to be and act
  professional but I have to say that it hasn't been
  easy. After having confronted him I did feel that
  things would be better but I don't think so under the
  circumstances. I understand that you must address
  this from a company position.
    I believe in my heart that someone has already
  spoken with him!!-other than myself.
    I don't feel very comfortable or trusting at this

I believe that he will be a Threat to me-

    You don't or may not see that but you also didn't
  see him in that office which is exactly what I've
  tried to tell Missy.
    This could be very serious and to be honest-anyone
  could have seen what he did to me in the office and
  also anyone could have heard us discussing it on the
  Night I confronted him. I want to be protected. I'm
  strong but under these circumstance I ask that you
  proceed with caution. I've certainly seen a different
  side of this man Ossie Gee & he knows that.
    For what it is worth the best interest of all I
  don't think I should stay here in this club in
  Middletown. I thought this would be a little more
  discreet & I understand your point-and I hope that
  you understand mine. I also honestly believe that
  Ossie doesn't have much much [sic] regard for women
  or even Sam's Company Policy. Even in our
  conversation-in his apology there was an almost non
  concerning attitude.
    It was only when I threatened to get Missy involved
  did he seem to care.

(Muzingo Aff. Ex. F.)

Chuck Miller and Kent LaMont, Wal-Mart's regional loss prevention manager, interviewed Gee on May 3, 1996. During that interview, Gee denied having any nonconsensual physical contact with Moore. (Def. 56.1 Stmt. ¶ 10.) He provided a written statement which said:

    One evening at a party at Missy McKinley's House,
  Kathy Moore asked me to take her to get cigarettes. I
  told her that I didn't know what was open but we
  could see if there was a place open to get her some.
  As I was driving, Kathy started kissing on me,
  telling me how much she wanted me. She then straddled
  me while I was driving, still kissing me, causing me
  to almost drive off the road.
    We pulled over in a parking lot and we both started
  in on each other to the point of almost having sexual
  intercourse. I drove Kathy back home and then went
  home myself.
    One Saturday night while I was working an overnite
  Kathy called and started saying how she wanted to
  handcuff me in her basement and sit on my face.
  Another night we were talking and I made a comment
  about going into the POS room to kiss but was not
  serious about it, and did not do it. This comment
  came after we had discussed what we had done and that
  she liked it.
    The last time came when we were in the Coaches
  office. She approached me and we both embraced. She
  suddenly backed away and then said how she wanted to
  keep things on a working level at work. I told her
  that I understood and that I respected her for that.
    Since then I have not approached nor have I said
  anything out of line to Kathy. On Thursday April 25th
  while I was scheduled to close Kathy asked to talk to
  me in the Coaches office. She started saying that I
  had a negative attitude toward her and that I was
  taking it out on the night crew, because she wouldn't
  be with me. I was totally surprised that she would
  say something like that since she started this whole
  thing. I told her that I didn't work that way and
  that I have not said anything to her since the time
  in the office about what happened between us. I also
  told her that I regretted what happened and wished
  that it never did.

(Muzingo Aff. Ex. G.)

At the conclusion of the May 3, 1996, interview, notwithstanding Gee's denial that he had harassed Moore and without deciding that issue, Gee was immediately suspended "pending further investigation/decision as to discipline" because he had participated in a romantic relationship with a subordinate, which was deemed conduct unbecoming a Wal-Mart manager. (Def. 56.1 Stmt. ¶ 13.) Following his suspension, Gee left the Middletown store and did not return. (Id.) Moore does not recall ever seeing him again. (Id. ¶ 15.) On May 12, 1996, Gee was demoted to assistant manager and transferred to a store in New Jersey, as formal discipline for conduct unbecoming a manger. (Id. ¶ 14.)

Following Gee's suspension and transfer, Moore requested a transfer to a store in or near Sunrise, Florida, where she owned a home. (Id. ¶ 16.) On or about June 22, 1996, she was transferred to the Miramar, Florida, store, which is about a 25 minute drive from Moore's home in Sunrise. (Id. ¶ 17.) She was transferred with all expenses paid by Wal-Mart, and she was assigned the same merchandise manager position she held in Middletown, with the same material terms and conditions of employment, including the same salary and benefits, minus a cost of living adjustment. (Id. ¶ 18.)

Moore did not report to work at the Miramar store. (Id. ¶ 19.) She testified at her deposition that the reason she did not report was because she was afraid to introduce herself to the other employees. "I believed in the company. They didn't believe in me and I could not go in stating that they were a wonderful company when I did not believe that at the time." (Muzingo Aff. Ex. B at 145-46.) According to notes from her psychiatrist, Dr. Ken Sladkin, Moore told him, "On the day that she was supposed to start work, she drove off to work but then was unable to complete the drive to work. She described this as being freaked out. After that, she wound up in Miami, but did not know how she had gotten there." (Solomon Aff. Ex. I at 1.)

Moore is currently on inactive disability leave status with Wal-Mart. (Def. 56.1 Stmt. ¶ 19.) On July 9, 1996, Dr. Sladkin diagnosed her with acute stress disorder, anxiety disorder, and major depressive disorder. (Solomon Aff. Ex. I at 3.) On December 17, 1997, Dr. Leonard Gralnik diagnosed her with post-traumatic stress disorder, noting on a disability insurance claim form that she "cannot tolerate even minimal interpersonal stressors" and that she became unable to work due to that impairment in October, 1997. (Solomon Aff. Ex. L.)

At her deposition on June 10, 1998, Moore testified with respect to her car ride with Gee on the night of McKinney's party.

    I don't know where we were. I know there was a car
  lot. That's the only thing I remember about it . .
  . [Gee] said that he had always wanted me and he
  became very aggressive and started pulling my clothes
  off and he raped me. I begged him to stop. I fought
  with him and I ended up on the outside of the car
  with no clothes on begging him to take me home,
  begging him that I needed a cigarette. He continued
  to beg me, please, please like a child.

Q. Please what?

    A. The man had just raped me. Obviously he didn't
  get enough. He begged me to have sex with him.

(Muzingo Aff. Ex. B at 98-99.) Moore was then asked if she had told any Wal-Mart employee, prior to her deposition, about being raped by Gee; she replied that she had told David Glass, Wal-Mart's CEO, via a faxed letter. That letter, dated September 15, 1996, stated:


    With all due respect, I must inform you that your
  Attorneys working for OSSIE GEE (STORE MGR) are
  wrong. Not only did he take me out into the middle of
  (who knows where) until I threatened to try & walk
  home. He PINNED ME to A FILE CABINET On the JOB. I
  and my psychiatrist bills are astronomical. Yes,
  attorneys HAVE NO CLUE. I'll be happy to play I
  WAY-I WAS with AND opened the BIRMINGHAM store IN
    How unfortunate that I put almost a Decade of my
  Life Into a once sought CAREER of which I Loved. I
  cannot though AND will not deal with SEXUAL
    P.S. All GAY and Human Rights Love HATE CRIMES.
  Ossie Did hear me say I loved another woman a short
  few minutes Before we went to the store (never made
  it there)[.] There were no secrets of my SEXUAL
    He Lied-HE hurt me & he hurt my Relationship with
  WALMART with TONJA. . . . AND He is a MGR. I don't
  want to Fight with you. . . . But I will!! Nothing
  will stop me From Letting People Know the story so
  hope fully [sic] NO ONE else gets hurt. We can settle
  this IN OR out of court. It doesn't matter to me. I
  want to go ON[] with my Life.
    HE DID HARRESS [sic] & MOLEST ME. I should have
  called the Police while in the managers office. I
  told people MANY to watch out for me. I was scared
  of this man. But I am not AFRAID ANYMORE. WALMART
  ALLOWING This behavior. What would Mr. Sam think?


    Mr. Glass, I understand you have you[r] attorneys.
  And I have mine. But also you have you[r] stock
  holders. The media & many many people that have high
  Regards for WAL-MART.
    Well I may Be a GAY WOMAN. But a good person who
  "ALWAYS" Proud TO Be a part of Wal-Mart. HIGH
    Ask Chuck Miller, NANCY MOSS, SHRAN [sic] THOMAS,
    I WORKED HARD with You. In Middletown I taught
  culture. People finally knew that Sam was[n't] just a
  Face on a picture in the Break Room. I taught them

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