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Eric Weathers v. Fedex Corporate Services

November 1, 2011

ERIC WEATHERS, PLAINTIFF,
v.
FEDEX CORPORATE SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff Eric Weathers, a former employee of Defendant FedEx Corporate Services, Inc., has filed this suit seeking damages for an alleged hostile work environment, constructive discharge, failure to accommodate, retaliation, religious discrimination, and intentional infliction of emotional distress. R. 26.*fn1 FedEx has moved for summary judgment on all of Weathers's claims. R. 28. As explained below, FedEx's motion for summary judgment [R. 28] is granted in part and denied in part. The sole claim on which Weathers has raised a genuine issue of material fact is the claim that FedEx failed to accommodate his religious beliefs.

I.

A. Background

The following facts are drawn from the parties' Local Rule 56.1 materials,*fn2 and are presented in the light most favorable to Weathers, the non-moving party, with all reasonable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 639 (7th Cir. 2010). Weathers began working for FedEx around 1988, and was promoted to Direct Sales Manager in Chicago in 2007. R. 28-2 ¶ 1. Weathers described himself as a conservative evangelical Christian. R. 38 PSOF ¶ 2. He belonged to an internal organization comprised of Christian FedEx employees. R. 28-2 ¶ 26. Additionally, Weathers was invited to speak at FedEx sales conferences about his faith. Id.

Before Weathers's promotion, he worked in the Worldwide Services Division in Tennessee. R. 28-2 ¶ 2. After he was promoted, Weathers reported to Barbara Mahoney, who reported to Dave Russell. Id. ¶ 3. In June 2007, Mahoney was replaced by Kym Kyker, who still reported to Russell. Id. ¶ 6; R. 38, PSOF ¶ 24. Kyker served as Weathers's direct supervisor until he was demoted in 2008. R. 28-2 ¶ 7.

B. 2007 Counseling Letter

In August 2007, one of Weathers's direct reports, Aprile Abernathy-Ferguson, filed an internal complaint alleging that Weathers discriminated against her. Id. ¶ 9. Abernathy's complaint alleged that Weathers quoted scripture to her on multiple occasions and that he discussed his religion in an uncomfortable and offensive manner. Id. ¶ 10. In particular, Weathers quoted a portion of the Bible that says a slave should be obedient to his master. Id. ¶ 11. Weathers contends that he never admitted to discussing that passage, R. 38¶ 12, but in fact Weathers explicitly admits in his deposition that he discussed the "slave/master passage" with Abernathy, Weathers Dep. at 71, and Weathers does not try to explain the discrepancy. FedEx alleges that Weathers specifically told Abernathy that she was his slave. R. 28-2 ¶ 11. In contrast, Weathers states that he only explained to Abernathy that the modern understanding one should give to the "slave/master" passage is that it is akin to an employer/employee relationship. Weathers Dep. at 72-73. More generally, Abernathy complained that Weathers spoke to her in a harsh and condescending manner and made comments that were degrading and mean. R. 28-2 ¶ 15.

To assess the truth of Abernathy's complaint, Kyker and other Human Resources (HR) personnel conducted an investigation. Id. ¶ 16. The investigation included interviewing the other employees who directly reported to Weathers. Id. These employees raised some concerns about Weathers's leadership style in their reports. Id. ¶¶ 17-19. But none of the direct reports described Weathers's conduct as inappropriate. While the investigative team identified leadership concerns, when all of the direct reports were asked whether Weathers's conduct was ever inappropriate, they all answered "no." R. 28-6 at 2-9. Additionally, all of the direct reports stated that Weathers was a "fair" manager, "fair" in the sense of treating the employees equally.

R. 38, PSOF ¶ 8. At the conclusion of the investigation, FedEx did not find that Weathers committed a policy violation, but the leadership concerns led Kyker and Russell to issue a "Letter of Counseling" to Weathers. R. 28-2 ¶¶ 20-21.

A letter of "counseling" is an internal coaching tool employed by FedEx, and should be contrasted with the more serious letter of "warning," which prohibits the recipient from applying for other positions. Id. ¶ 23. The counseling letter was issued on October 15, 2007. Id. ¶ 21. The letter opened by acknowledging that Weathers had not committed a specific violation of the company's religious discrimination policy. Id. But the letter did command that Weathers's discussions of religion with other employees, even if initiated by others employees, "must cease." Id. Additionally, the letter identified the leadership concerns expressed by Weathers's direct reports, and indicated that Weathers would be assigned a mentor, and that Kyker would conduct "future . . . meetings with [Weathers's] team to ensure the morale and support is being administered properly." Id. The letter closed by stating: "Eric, you are a valuable member of this team[,] and I will expect to see some progress with regard to leadership and support for your team." Id. Shortly before issuing the letter, Kyker praised Weathers for a "stellar" career at FedEx. R. 38, PSOF ¶ 11.

It is not clear who authored the letter of counseling, or if there was a primary author. Kyker testified in her deposition that she drafted the letter with collaboration from HR and Russell. Kyker Dep. at 8-9. Russell testified that a director of sales such as Kyker is typically not the primary author of these letters, Russell Dep. 16, and that typically HR drafts these letters in conjunction with the legal department and with the director of sale's input. Id. Russell testified that he had no real hand in drafting the letter, other than a discussion with Kyker where he acknowledged the situation with Weathers's leadership and agreed that action needed to be taken. Id. at 17. Russell testified that he (Russell) agreed with the "sentiment" of the letter. Id.

B. October-November 2007

In what turns out to be an important fact, on October 16, 2007, Weathers sent an email to Kyker and Jim Wallace, an HR representative. R. 28-2 ¶ 27. The email asked for "clarity" regarding how Title VII prohibits Weathers from discussing religion. Id. ¶ 27. In the email, Weathers cites a passage of Scripture (First Peter 3:15-17, which instructs to "be ready always to give an answer to every man that asketh you a reason of the hope that is in you") that Weathers believed obligated him to answer questions about his religion. Id. In closing, Weathers asked "At what point and in what physical location(s) does Title VII permit me, and other FedEx employees to answer such genuinely posed questions?" Id. Weathers refers to this email as a request for religious accommodation. Id. ¶ 28. Weathers did not receive a response to this email. R. 38, PSOF ¶ 16. Additionally, after receiving the letter of counseling, Weathers asked how he should explain his college degree, which is in Bible and Youth Ministries. Id. ¶ 17. Kyker said that Weathers should tell others that he holds a "theology" degree, and she concluded the conversation by leaving the room promptly. Id. Following this discussion, Weathers also tried asking Jim Wallace of HR about the extent to which Weathers could discuss his faith. Id. ¶ 18. Wallace told Weathers that he could not discuss religion because it was a "detrimental act." Id.

On October 26, 2007, Kyker phoned Weathers to discuss his team's sales results. R. 28-2 ¶¶ 29-30. Kyker was "very disappointed" with his team's performance. Id. Additionally, Kyker expressed disappointment that Weathers had not fired under-performers from his team. Id. Weathers does not deny that this conversation occurred, but argues that Kyker's views regarding team performance and firings were wrong. R. 38 ¶ 30. At that meeting, however, Weathers agreed that his team had not "done a great job." Weathers Dep. at 132. These issues had been discussed with Weathers and other district sales managers before that date and before the letter of counseling issued. R. 28-2 ¶ 31.

According to Weathers, he attempted to fire the under-performers on his team. R. 38, PSOF ¶ 31. To facilitate firing an employee, Weathers had to compile an extensive document called a request for termination. Weathers Dep. at 64. Weathers compiled a termination request for every employee he was asked to. Id. ¶¶ 31-36. His termination request for one employee was denied by HR, three of the employees left before he could compile a termination request, and he stopped the termination request process for Aprile Abernathy after she filed her internal complaint against Weathers. Id. As for three employees who left on their own accord, it is not clear whether Weathers began compiling the termination request and was interrupted when the employees left, or if he never started the process at all. Id.

On November 2, 2007, Kyker sent an email to her team with the subject "FW: CBT status." R. 28-6 at 10. CBT stands for "Closed Business Tracking." Kyker Dep. at 20. Closed business tracking numbers were used to monitor revenue. Id. at 21. The email stated in the body: "Team[/]*fn3 The big man is watching. [/] Ck your numbers." R. 28-6 at 10. Attached to the email was a picture of three signs that one would see in front of a church. Id. at 11. One sign says, "First Baptist Church." Id. A second sign lists times of worship. Id. A third sign, one on which the letters can physically be changed to display a custom message, reads "GOD HAS SEEN [/] YOUR CBT NUMBERS [/] YOU'RE GOING TO [/] HELL!" Id. The email was forwarded by Kyker to her team. Kyker Dep. at 21. Kyker did not make the picture, but received it from another FedEx employee, John Whittington, who had sent it to Kyker and one other employee (who has no connection to this litigation). Id. Whittington sent the original email on October 26, a few days before Kyker forwarded it, and the original email stated: "Being from the South, you both wouldn't happen to be Baptist, would you?" R. 28-6 at 10.

Additionally, Kyker herself raised, with Weathers, a religious topic at some point after this email, namely, when she asked Weathers to provide a definition for the term "atheist." R. 38, PSOF ¶ 13.

C. January 2008 Inadvertent Email

Early the next year, Weathers did make a mistake, demonstrating the danger of wide-broadcast emails. In January 2008, Weathers sent an email containing confidential information to his entire group of direct reports. R. 28-2 ¶ 32. The email contained confidential information about his direct reports, including disciplinary history and planned disciplinary actions, and naturally the information was not supposed to be seen by the direct reports. Id. ¶¶ 32-33. Weathers had intended to send the email to his administrative assistant for revision and proofreading, but instead he sent the email to his entire team. Id. ¶ 34. Weathers immediately contacted Kyker and Wallace (the HR representative), who both told him that it was not a big deal. R. 38, PSOF ¶¶ 21-22. In response to the email, Abernathy filed a second internal complaint against Weathers. R. 28-2 ¶ 35.

Also in January 2008, but after the email incident, Kyker and Russell met with Weathers to discuss his performance. Id. ¶ 38. Russell asked Weathers how he could regain the trust of his direct reports. Id. ¶ 39. Russell and Kyker also encouraged Weathers to think about stepping down from his position because of the damaged trust which Weathers's team had in him. Id. At this meeting, Weathers alleges, Russell said that Weathers could be sued ...


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