The plaintiff alleged a years-long pattern of sexual harassment of herself and other women by a supervisor, but did not complain of sexual harassment during her employment.  She was fired after she learned that the supervisor was living with a female co-worker, and reported it.  FedEx said she was fired for misconduct.  On July 16, 2012, the Magistrate Judge recommended the grant of summary judgment on all claims, including sexual harassment.

The basis of the recommendation was threefold:

(a) The Magistrate Judge found that the harassment was not unwelcome, severe or pervasive:

(1) The Magistrate Judge found that Plaintiff never actually rebuffed the harasser, who was her supervisor.  “Plaintiff testified: ‘I don’t recall exactly what I said. I might have said ‘stop’ laughingly and ‘go away.’ I don’t know how I reacted.’”   Plaintiff also pretended the conduct did not happen.  She did not say anything to the alleged harasser.  (There was also testimony that the workplace was pretty loose, with frequent horseplay among the employees.)

(2) Defendant argued: “Plaintiff claims that she was harassed by a manager because of sex, and other employees (both men and women) were favorites and targets of the manager who harassed her. None of the events complained of by Plaintiff were severe or pervasive, or extreme or atrocious.”

(3) Defendant also argued that the decision-maker on Plaintiff’s termination was not her supervisor, the alleged harasser, because he only notified higher management and only wanted to write a warning letter; it was a higher-level manager who decided to terminate Plaintiff, and the termination was upheld through all internal “Guaranteed Fair Opportunity” levels.

(4) The Magistrate Judge rejected plaintiff’s argument that the harassment affected her job performance, because she had excellent performance reviews prior to her firing allegedly for misconduct, and until oral argument had presented herself in the litigation as a stellar employee.

(b) The Magistrate Judge found that plaintiff never complained of the harasser’s actions against her until she filed her EEOC charge.  She knew of the company’s 24-hour toll-free alert line, and used it to complain anonymously of non-actionable favoritism towards a female co-worker with whom the supervisor was having a relationship, but never used it to complain of harassment against her.

(c) The Magistrate Judge found that defendant took reasonable and adequate steps to prevent harassment and to address any problems.  It had written policies prohibiting sexual harassment, and the alleged harasser was trained on its employment policies and completed training on sexual harassment awareness.  In addition, “Defendant’s Alert Line provides employees with an anonymous way to report employment issues or complaints, and someone in the human resources department investigates issues raised through the Alert Line.”

The Magistrate Judge found that there was no competent evidence to the contrary.

The district court rejected the Report and Recommendation as to the sexual harassment claim and denied defendant’s motion on that claim while granting it on all other claims.  There is a decent chance of success on appeal on some of the dismissed claims, but I am writing because of the important to other lawyers of the denial of summary judgment on the harassment claims.  The court held that Plaintiff made an adequate showing that:

(a) the conduct was severe or pervasive (“The plaintiff asserts DiPalma made sexually explicit comments to her, improperly touched her, and made offensive comments to her.”);

(b) Federal Express was not entitled to the Faragher–Ellerth affirmative defense:

(1) because Plaintiff suffered the tangible employment action of termination (even though the court granted summary judgment as to the sex discrimination claim as to the termination); and

(2) because the supervisor/alleged harasser “was involved in the decision to terminate the plaintiff’s employment and was the person who informed the plaintiff of this decision”;

(c) the conduct was imputable to Federal Express because there was evidence of the alleged harasser “engaging in harassing behavior toward other female employees.”  The court cited Fourth Circuit authority on the legal effect of this evidence on imputation of liability to the employer for harassing behavior by employees:

“As for imputation, the plaintiff cites, in her objections, Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part on a different issue,900 F.2d 27 (4th Cir. 1990) (per curiam).  In Paroline, the Fourth Circuit stated that “[i]n a hostile environment case under Title VII, we will impute liability to an employer who anticipated or reasonably should have anticipated that the plaintiff would become a victim of sexual harassment in the workplace and yet failed to take action reasonably calculated to prevent such harassment.  An employer’s knowledge that a male worker has previously harassed female employees other than the plaintiff will often prove highly relevant in deciding whether the employer should have anticipated that the plaintiff too would become a victim of the male employee’s harassing conduct.” Id. at 107.  

In 2013, the FBI Uniform Crime Reporting (UCR) program initiated collection of rape data under a revised definition within the Summary Reporting System. The study found that rape is grossly underreported in the United States.

The revised UCR definition of rape is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”. Attempts or assaults to commit rape are also included. Statutory rape and incest are excluded.

Under 10 U.S. Code § 920 (Art. 120, Rape and Sexual Assault) a person is guilty of rape if commits a sexual act upon another person by:

1. using unlawful force against that other person;
2. using force causing or likely to cause death or grievous bodily harm to any person;
3. threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
4. first rendering that other person unconscious; or
5. administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct

While definitions and terminology of rape vary by jurisdiction in the United States, the FBI revised its definition to eliminate a requirement that the crime involve an element of force. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age, as opposed to sex between a minor and a much older adult.

New York recognizes and punishes three degrees of rape. Penalties depend on the ages of the defendant and victim, and the conduct that occurred.

Rape in the third degree. N. Y. Penal Law § 130.25

Third degree rape includes sexual intercourse between a minor who is younger than 17 years old and a defendant who is at least 21 years old. A person less than 17 years old is deemed incapable of consent for purposes of the laws regarding criminal sex offenses.

A person is guilty of rape in the third degree when:

1. He/she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than 17 years old;
2. Being 21 years old or more, he/she engages in sexual intercourse with another person less than 17 years old; or
3. He/she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

Rape in the third degree is a class E felony , which incurs up to 4 years in prison.

Rape in the second degree. N. Y. Penal Law § 130.30

Second degree rape includes sexual intercourse between a minor who is younger than 15 years old and a defendant who is at least 18 and 4 or more years older than the minor. In New York, it is illegal for an adult or someone 18 or older to have sex with a minor or someone younger than 16, even if the sex is consensual.

A person is guilty of rape in the second degree when:

1. Being 18 years old or more, he/she engages in sexual intercourse with another person less than 15 years old; or
2. He/she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than 4 years older than the victim at the time of the act.

Rape in the second degree is a class D, which incurs up to 7 years in prison.

Rape in the first degree. N. Y. Penal Law § 130.35

Upon this section, sexual intercourse has its ordinary meaning and occurs upon any penetration, however slight, between a minor who is younger than 11 years old and a defendant of any age.

A person is guilty of rape in the first degree when he/she engages in sexual intercourse with another person:

1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless; or
3. Who is less than 11 years old; or
4. Who is less than 13 years old and the actor is 18 old or more.

Forcible compulsion means compelling the victim through the use of physical force or the threat of immediate death, physical injury or kidnapping.

Rape in the first degree is a class B felony, which incurs at least 5 (and up to 25) years in prison.

It is absolutely vital that you do not hesitate to secure the legal assistance of a criminal defense lawyer. If you have been charged with rape, we can develop any defenses that might apply to your case.

For example, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In New York, there is a partial Romeo and Juliet exemption for consensual sex between a minor who is 15 or 16 and someone who is younger than 21. There is also a partial exception when a minor is 11, 12, 13, or 14 years old, and a defendant is younger than 17.

Moreover, New York has a marital exemption for statutory rape that allows consensual sex between a married minor and that minor’s adult spouse, even though their ages would prohibit it if they were not married.

Mistake of age is not a defense in New York.