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April 7, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge.



In this employment-discrimination case, plaintiff alleges that she suffered sexual harassment by defendant Federal Express Corporation as a result of actions by co-workers, as well as the company's ratification of those actions and failure to monitor sexual harassment. Defendant moves to dismiss plaintiff's complaint in its entirety. This order finds that some of plaintiffs allegations are time-barred and FedEx promptly and reasonably responded to plaintiffs other allegations of harassment. Furthermore, the failure to prevent or monitor sexual harassment does not independently give rise to a cause of action in the absence of actionable sexual harassment. Additionally, plaintiff's retaliation claims fails because she has not alleged an adverse employment action. Accordingly, plaintiff's complaint is DISMISSED with prejudice.



Plaintiff began work at Federal Express in 1989 at the station in San Jose, California. In 1998 she transferred to the Dublin station. When that stationed closed, plaintiff moved to the Pleasonton station in 1999. Plaintiff alleges that she was sexually harassed by five different male co-workers.

In 1997, plaintiffs co-worker Fred Verticelli, complimented plaintiff's hair and smile on a daily basis (Compl. ¶ 7; Pltf. Dep. at 88) ("you are so beautiful;" "you are having a nice hair day"). Plaintiff told a co-worker that the comments made her feel "a little uneasy" but did not complain to management. Plaintiff and Verticelli continued to work together at the same facility for four months (Pltf. Dep. at 89-93). There are no further allegations against Verticelli.

Sometime in 1998, plaintiff complained to her manager that a co-worker, Kim Frakes, spanked her one time on the buttocks. Frakes was given a copy of the sexual harassment policy from his manager and the incident was never repeated. Plaintiff's manager told her that she had spoken to Frakes and that everything had been taken care of (id. at 26, 70, 169-70).

In May 2000, plaintiff's co-worker Andy Cuneo, told her he made a comment to a customer about plaintiff being "available," as in available for a dating or sexual encounter. Plaintiff said nothing to Cuneo or to management, but found the comment extremely humiliating. Nothing else is alleged against Cuneo (id. at 71-74, 172).

Sometime in May 2000, plaintiff overheard co-worker Richard Fryor "describing his sexual exploits" and using the "f word" in conversation with someone else. Plaintiff is unaware whether management addressed the matter or whether it happened ever again (Compl. ¶ 2; id. at 172-74).

At various times and to various managers, plaintiff did complain of some of the above incidents. Because plaintiff's claims fail as a matter of law without regard to such complaints, however, this order does not detail these ancillary facts relating to plaintiff's claims.

Plaintiff's allegations focus on her co-worker Gilbert Gonzales. Plaintiff and Gonzales worked together since 1990. They were neighbors and would commute to work together once a week. In the spring or early summer of 1999, Gonzales made a comment to plaintiff about her breasts. Also around that time, he asked her when they were going to have an affair. Plaintiff felt these comments were inappropriate. In November 1999, Gonzales came up behind plaintiff and began massaging her shoulders. When she moved away, he transferred his massage attentions to another female co-worker. In December 1999, Gonzales was waiting in line behind plaintiff and touched her buttocks. Plaintiff moved away quickly and felt embarrassed. A few days later on December 24, 1999, Gonzales confronted plaintiff about the way she had spoke to his wife during a phonecall unrelated to these allegations and called plaintiff a "bitch" (Saindon Decl. ¶ 6). Plaintiff reported this comment to management. Several weeks later plaintiff wrote to management about the harassment and an investigation was launched (Opp. at 4). A few months later Gonzales passed plaintiff in the hall and "directed a mocking laugh" at her (Saindon Decl. ¶ 10).

Plaintiff testified that no sexual harassment or hostile work environment occurred in 2001 by any individual (Pltf. Dep. at 167). In terms of retaliation, plaintiff provides evidence of three incidents. First, plaintiff's husband believes he drove by Gonzales and saw Gonzales gesture with his middle finger. Second, plaintiff's husband, again driving in his car saw Gonzales "put his hand over his mouth and just started laughing." Plaintiff did not witness these incidents. The final incident occurred at work when Gonzales and plaintiff were approaching one another in a hallway. Gonzales put his hand to his mouth and smiled. This occurred some time before February 18, 2000 (id. at 54-58).

As noted below, plaintiff's harassment and retaliation claims fail as a matter of law without regard to the company's policies and procedures geared toward prevention of harassment. Accordingly, this order does not ...

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