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McKinnish v. Donahoe

United States District Court, W.D. North Carolina, Asheville Division

August 15, 2014

KIMBERLY J. MCKINNISH, Plaintiff,
v.
PATRICK R. DONAHOE, Defendant

Page 690

For Kimberly J. McKinnish, Plaintiff: Christopher Christopher Vaughn, LEAD ATTORNEY, PRO HAC VICE, The Vaughn Law Firm, LLC, Decatur, GA; Gregory Hunt, Gregory Hunt, Attorney at Law, Charlotte, NC.

For Patrick R. Donahoe, Postmaster General, U.S. Postal Service, Defendant: Paul B. Taylor, LEAD ATTORNEY, United States Attorney Office, Asheville, NC.

Page 691

MEMORANDUM OF DECISION And ORDER

Max O. Cogburn Jr., United States District Judge.

THIS MATTER is before the court on defendant's Motion for Summary Judgment. The motion has been thoroughly briefed and oral arguments were heard August 10, 2014. For the reasons that follow and for the reasons set forth in the defendant's brief in support and reply brief, summary judgment will be granted and this case dismissed.

Page 692

FINDINGS and CONCLUSIONS

I. Background

At all times relevant to this action, plaintiff was a fill-in mail carrier employed by the United States Postal Service at its West Asheville station. Plaintiff contends that her route supervisor, David Duncan (" Duncan" ), sexually harassed her by forcing her to engage in an exchange of sexually explicit text messages and pictures for 10 months in 2010. Plaintiff never brought such conduct to the attention of Duncan's supervisor, who was present at the West Asheville station, or otherwise availed herself of the postal services' written sexual harassment procedures. The inappropriate conduct only ended -- and ended immediately -- when plaintiff's husband discovered the texts and brought them to the attention of the local postmaster. After the postal service investigated the allegations, Duncan's employment was terminated by the postmaster in little more than two months; however, Duncan ultimately received a lesser punishment when he appealed the termination to the Merit System Protection Board, which downgraded his position, assigned him to another location, and placed him on probation.

Defendant has moved for summary judgment contending that plaintiff's failure to report the harassment was unreasonable; that Duncan does not qualify as a " supervisor" under current law; and that because defendant had in place an effective anti-harassment policy, it is entitled to dismissal in accordance with its affirmative defense. Plaintiff contends that summary judgment is not appropriate because she failed to report the conduct based on fear of retaliation; that Duncan was a supervisor as he controlled her work hours and routes; and that defendant is not entitled to avail itself of its affirmative defense under Faragher, infra, as the anti-discrimination policy was not effective.

II. Summary Judgment Standard

Rule 56 was amended to give parties a " roadmap" for seeking and responding to a request for summary judgment. Rule 56(a), Federal Rules of Civil Procedure, provides:

A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

Fed.R.Civ.P. 56(a). The rule goes on to provide procedures for a party to use in responding to a Motion for Summary Judgment:

(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), ...

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