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Pergament v. Federal Express Corp.

March 30, 2007


The opinion of the court was delivered by: VITALIANO, D.J.


Tracy M. Worthy ("Worthy"),*fn1 an African-American female, brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, the Equal Pay Act, 29 U.S.C.§ 206(d)(1)("EPA"), and Article 15 of the New York State Human Rights Law ("NYSHRL") against Federal Express Corporation ("FedEx"), her former employer. Worthy alleges that FedEx discriminated against her on the basis of her race and sex by subjecting her to disparate treatment, by failing to promote her, by retaliating against her for filing a prior complaint of employment discrimination, and, ultimately, by terminating her employment with FedEx. Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.


Unless otherwise indicated, the following facts are considered by the Court to be undisputed.*fn2 Worthy was hired by FedEx on August 6, 1984. She served first as a customer service agent and then as a foot courier. In February 1986, Worthy was promoted to service agent, becoming a senior service agent later that year. These promotions were followed in relatively short succession by her promotion to junior manager in June 1989, to operations manager in September 1989, and to service assurance manager in June 1995. All of these positions were located at FedEx stations in Nassau and Suffolk counties. Def.'s Rule 56.1 Stmt. ¶ 1; Pl.'s Rule 56.1 Counter-Stmt. ¶ 4.

In December 1996, Worthy was promoted again, this time to senior manager of station operations at FedEx's Mount Vernon station.*fn3 Worthy asserts that the Mount Vernon station, which is located in Westchester County and services Westchester and Bronx counties, is known as a particularly difficult facility to oversee due to its space constraints, high turnover, and the fact that its assigned delivery zone encompasses high-crime areas into which its couriers are sometimes reluctant to venture. Def.'s Rule 56.1 Stmt. ¶ 13; see generally Pl.'s Rule 56.1 Counter-Stmt. Plaintiff's responsibilities in her new position included "plan[ning], organiz[ing], direct[ing], and control[ling] all operations within the service area of the station in a way that provi[d]es maximum service to customers while maintaining a cost effective station operation." Def.'s App., Vol. 2, Ex. 10.

As the senior manager at the Mount Vernon facility, Worthy ranked in the corporate hierarchy directly below managing director Cathy Walton ("Walton"), an African-American female who oversaw all of the FedEx facilities located within the company's Hudson district. When Walton left in early 1997, after supervising Worthy for only a month, Walton's position as managing director was taken over by Michael Fichera ("Fichera"), a white male. Worthy reported to Fichera for approximately two years. During this time, she received three performance evaluations from Fichera in which he rated her a 3.0, 3.3, and a 3.0 out of 4.0 - -reasonably positive scores by FedEx standards. In these evaluations, Fichera generally praised Worthy for her performance in dealing with the special challenges posed by the Mount Vernon facility; at the same time, however, he expressed some concern about her very abrasive management style, which he believed negatively impacted employee morale. Def.'s Rule 56.1 Stmt. ¶ 14; Def.'s App., Vol. 2, Ex. 11; Pl.'s Rule 56.1 Counter-Stmt. ¶¶ 5, 6.

In June 1999, following a regional reorganization, Fichera ceased to be Worthy's managing director when the Mount Vernon facility, previously assigned to the Hudson district, was re-assigned to FedEx's Long Island district. As a result, Nanette Malebranche ("Malebranche"), an Hispanic female who had served as the managing director of the Long Island district since 1997, became Worthy's managing director. Malebranche and Worthy had met previously, in 1989, when they both were serving as managers at different stations. Malebranche had also had some communications, albeit indirect, with Worthy in 1997 following Malebranche's participation in an investigation of an accident involving an African-American FedEx driver who happened to be the father of Worthy's son. In a written report on the incident, Malebranche had recommended the driver's discharge. Worthy took offense to this report, particularly since Malebranche had referred to Worthy in the report as the driver's "common law wife". Malebranche testified that, upon receiving a call from Fichera notifying her of Worthy's complaints, she had removed the offending terminology from the report. The record does not indicate any other significant interactions between the two women prior to the 1999 reorganization which effectively made Malebranche Worthy's direct supervisor. Def.'s Rule 56.1 Stmt. ¶¶ 14, 16; Pl.'s Rule 56.1 Counter-Stmt. ¶¶ 8, 100, 101; Malebranche Dep. at 21, 33-35.

On March 7, 2000, Malebranche issued a warning letter to Worthy for violating FedEx's Acceptable Conduct Policy. This was the second such letter*fn4 Worthy had received during her time as a senior manager. In this letter, Malebranche cited Worthy's "leadership failure" in neglecting to discipline and terminate an employee in her station who had been found to have falsified signature release scans on several occasions. Malebranche concluded by reminding Worthy that the letter would remain active in her personnel file for 12 months and that two more such disciplinary notifications within that period could result in her termination. Def.'s Rule 56.1 Stmt. ¶ 20; Def.'s App., Vol. 2, Ex. 13.

Worthy's problems were soon compounded by negative reports provided by her subordinates to FedEx management. First, Worthy received a low Survey Feed Back ("SFA") score from the managers she supervised. Second, an anonymous letter, apparently authored by lower-level employees at the Mount Vernon facility, was mailed to FedEx headquarters in Memphis, Tennessee in March 2000. The letter alleged that working with Worthy was "hell" in that she "belittles couriers and managers," "has no respect for anyone," and "threatens every one of [our] jobs and careers." The writers concluded by encouraging headquarters to "impeach" Worthy - - whom they termed "the disease with [a] cure" - - before they took the matter into their own hands. Despite the threatened revolt, FedEx management took no immediate action regarding Worthy's employment. Def.'s Rule 56.1 Stmt. ¶ ¶ 21, 22; Def.'s App., Vol. 2, Ex. 11, 24.

On May 31, 2000, Malebranche gave Worthy a 30-day notice to turn around the Mount Vernon facility, which was continuing on its track of poor performance. Compl. ¶ 17. Worthy received a follow-up interoffice memorandum the next day from Malebranche recapping the concerns and issues they had discussed during their May 31st meeting, including Worthy's low SFA results and the high number of vehicle accidents at the station. Malebranche also cited several areas in which she believed that Worthy's submitted action plans were insufficient. For example, she noted that Worthy had not adequately addressed the issue of overall service at the station, which had been on a significant and "steady downward trend" since the previous April. Malebranche ordered Worthy to submit, by June 6, 2000, an updated action plan for each of the problem areas. Def.'s App., Vol. 2, Ex. 27.

Worthy apparently did so, as Malebranche sent Worthy another interoffice memorandum, on June 7, 2000, commending her on her revised action plans. At the same time, however, Malebranche warned Worthy in the memorandum that "this is not about the next 30 days, the last 30 days or three months. It is about your trending performance and the performance of the station for the last 13 months under your leadership." Malebranche further observed that, although she had discussed these performance deficiencies with Worthy on "numerous occasions," Worthy had not been receptive to Malebranche's suggestions for improvement - -such as replacing the congested station's Grumman vehicles with smaller and more maneuverable Econoline vans. Worthy, apparently upset over Malebranche's criticisms, refused to sign the line acknowledging that she had received the memorandum. That same day, Malebranche issued Worthy a "documented counseling" letter for missing her station's service goals for the seventh consecutive week. Malebranche ended the letter with the following warning: "This letter serves as notification that should you fail to meet your goal in the future, further disciplinary action may occur." Def.'s App., Vol. 2,Ex. 28, 29.

Later that month, Malebranche completed Worthy's annual employment evaluation in which she rated Worthy a less-than-impressive 1.8. In the accompanying comments section, Malebranche ascribed the Mount Vernon station's problems in large part to Worthy and added that "[Worthy] has trouble accepting responsibility for her actions/mistakes . . . . [she] needs to accept constructive criticism better and allow herself to be coached." Malebranche also alluded to the fact that managers and lower-level staffers were dissatisfied with Worthy's abrasive management style, noting that Worthy needed to make improving communications with employees an overall priority. Def's App., Vol. 2, Ex. 11.

Two days later, on June 28, 2000, Malebranche sent Worthy a reminder letter regarding her low annual evaluation and her "overall poor performance." In the letter, Malebranche noted that "[p]resently the [Mount Vernon] station, under your leadership, is achieving only one of its [domestic ground operations] goals and there has been minimal or no improvement during the past four (4) months in these critical performance areas." She concluded by advising Worthy that "this is your second letter on file" and that, pursuant to FedEx policy, one more such warning/reminder letter could result in her termination. Def.'s App., Vol. 2, Ex. 12.

Worthy refused to sign or acknowledge both the review and the reminder letter. Instead, she filed a complaint of discrimination, partially based on race, against Malebranche via FedEx's internal Guaranteed Fair Treatment Procedure ("GFTP")/EEO process. On July 5, 2000, Worthy was informed that an investigation would be conducted into her complaints. Def.'s Rule 56.1 Stmt. ¶ 30; Def's App., Vol. 2, Ex. 11, 20.

Worthy, however, was soon dealt another blow. On July 20, 2000, Jo Thomas ("Thomas"), an operations manager at the Mount Vernon facility, sent a letter to Malebranche, via the human resources department, in which she strongly criticized Worthy's leadership. Thomas complained that, due to "[t]he atmosphere Worthy is creating," the morale of both managers and hourly employees was abysmal. Thomas asserted that Worthy belittled her and the other managers constantly with "a barrage of vulgar, abusive language and comments," played favorites, and otherwise offered managers no support in their efforts to turn the station around.

Malebranche did not personally take part in the subsequent investigation into the validity of Thomas' complaints. Def.'s Rule 56.1 Stmt. ¶ 29; Def.'s App., Vol. 2, Ex. 25.

On August 9, 2000, Worthy received another documented counseling letter from Malebranche regarding the Mount Vernon facility's deficient performance. Malebranche noted that despite her repeated warnings, the station's performance had not only not improved over the preceding weeks, but was actually getting "progressively worse" in a number of critical areas. Malebranche ended the letter on an ominous note, writing that "[a]t this time I must advise you that immediate improvement is required in order to avoid further disciplinary action." In response, Worthy filed, on August 16, 2000, a second GFTP complaint against Malebranche alleging retaliation and discrimination on the basis of race and marital status.*fn5 Def.'s App., Vol. 2, Ex. 15, 31.

On August 21, 2000, Malebranche issued Worthy yet another documented counseling letter addressing the Mount Vernon facility's "unacceptable" number of package missorts. Malebranche noted that the station's numbers in this area were considerably higher than comparable stations and that this, in turn, was having an impact on "bottom line profits" as the average cost to FedEx of each missorted package was $26.50. In a response memorandum, dated August 24, 2000, Worthy acknowledged her station's overall poor performance, but attributed it primarily to her problems in retaining experienced employees in various departments. Worthy promised to work with her managers in order to improve the facility's overall operational structure. Def.'s App., Vol. 2, Ex. 32-33.

On September 13, 2000, however, Malebranche sent Worthy her third - - and final - - warning letter. The letter contained the following language:

. . . as a result of an investigation by Personnel it has been deemed that your behavior as senior manager of FedEx was unacceptable. As a result you are being issued this Warning Letter for Leadership Failure as outlined in the Acceptable Conduct Policy (2-5). This is your third letter within a 12-month period and in accordance with policy (2-5/2-50) your employment with FedEx is being terminated immediately.*fn6

The letter also informed Worthy of her right to appeal her termination through the internal GFTP process. Def.'s App., Vol. 2, Ex. 14.

On September 14, 2000, Worthy did so, filing a "Step 1 GFTP Form For Terminated Employees." In the "comments" section of this form, Worthy complained that she was fired not because of the station's lackluster performance under her leadership but because Malebranche had a "vendetta" against her: "[P]lain [and] simple [Malebranche] never did like me [and] wanted me out by termination." Worthy also alleged that Malebranche was "racist" and, by firing her, was protecting the "jobs of white senior managers in her district." Def's App., Vol. 2, Ex. 17.

Worthy's termination was affirmed at all three levels of FedEx's GFTP appeals process. In a letter dated October 13, 2000, FedEx Eastern Region Vice President Thomas Lynch ("Lynch") first addressed Worthy's June 28, 2000 complaint against Malebranche regarding her low performance evaluation, upon which a decision had not yet been rendered due to the ongoing investigation. Lynch stated, in sum, that the evaluation was justified due to the station's slipping performance. He also noted that there was no evidence to support Worthy's allegation that Malebranche was "out to get" her, especially in light of the fact that two of Worthy's previous managing directors had also expressed some concern over her performance and abrasive demeanor. Lynch then turned to the issue of Worthy's termination:

As the result of a complaint*fn7 an investigation was conducted regarding your behavior and conduct as a Sr. Manager. The results of this investigation provided that you had in fact acted in an unprofessional manner on more than one occasion with more than one employee through your words and your actions. There was a preponderance of evidence as a result of this investigation that indicated you have in fact used public reprimands and humiliation when dealing with subordinates and that your improper method of communication resulted in a general poor employee relations climate. On the basis of our review, we are upholding your Warning Letter/Termination.

Worthy appealed this decision to the FedEx Appeals Board, the final step in the FedEx GFTP process. The Appeals Board upheld Lynch's determination in a letter dated November 9, 2000. Four days later, FedEx extended Worthy a severance package, which she declined. Def.'s App., Vol. 2, Ex. 19, 20, 21.

On January 16, 2001, Worthy filed a charge of discrimination with the New York State Department of Human Rights ("SDHR"), alleging that FedEx had discriminated against her on account of her race and sex and had terminated her in retaliation for her prior complaints regarding such discrimination. This complaint was forwarded in due course to the Equal Employment Opportunity Commission ("EEOC"), ...

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