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Yeager v. Covenant Security Services, Ltd.

United States District Court, D. New Jersey, Camden Vicinage

June 13, 2017

DAVID J. YEAGER, Plaintiff,

          David F. McComb, Esq. Zachary Adam Silverstein, Esq. Zarwin Baum DeVito Kaplan Schaer & Toddy PC Attorneys for Plaintiff David J. Yeager.

          William M. Tambussi, Esq. Michael J. Watson, Esq. Brown & Connery, LLP Attorneys for Defendant Covenant Security Services, Ltd.



         This matter comes before the Court upon the Motion for Summary Judgment [Docket No. 24] by Defendant Covenant Security Services, Ltd. (“Covenant” or the “Defendant”), seeking the dismissal of the above-captioned matter by Plaintiff David J. Yeager (“Yeager” or the “Plaintiff”) in its entirety. Having considered the parties' submissions and for the reasons set forth below, Defendant's Motion for Summary Judgment is granted, in part, and denied, in part.


         This dispute stems from Defendant's decision to terminate Plaintiff's employment on October 31, 2014. Plaintiff alleges that he was terminated unlawfully and in retaliation for his support of a former co-worker's unlawful termination lawsuit against Covenant.

         Covenant provides security and protection services to clients at facilities across the country. Def. SOMF ¶ 1. Plaintiff was hired by Covenant as a security officer in the summer of 2011. Id. ¶ 10. On August 1, 2011, Plaintiff signed a Handbook Acknowledgement Form, acknowledging that he had received Covenant's Employee Handbook and that he would become familiar with the policies set forth in the Handbook. Def. Ex. 4 [Docket No. 24-4]. On October 15, 2011, Plaintiff was promoted to the position of site manager. Def. Ex. 6 [Docket No. 24-5]. On November 22, 2011, Plaintiff underwent supervisory training, which included training regarding Covenant's sexual harassment policies and procedures. Def. SOMF ¶ 12.

         Covenant's Employee Handbook expressly prohibits harassment of any kind, including sexual harassment. Id. ¶ 16. Specifically, the Employee Handbook provides that “[a]ny employee who believes that he or she has been a victim of some form of sexual or other harassment, or other inappropriate conduct or behavior, should report the incident immediately to his or her supervisor, the Human Resources Manager or any member of senior management with whom the individual feels comfortable.” Def. Ex. 2 at DEF 37 [Docket No. 24-3] (emphasis in original). It further states: “If reported to a supervisor, the supervisor fills out a ‘Preliminary Complaint Form', having the employee briefly describe what incident has occurred. The supervisor does not investigate the complaint - it must be immediately forwarded to the Human Resources Manager.” Id. (emphasis in original). Additionally, the Handbook states that “[r]eports of harassment must be reported in a timely manner to ensure a quick and effective investigation of the incident. It will be extremely difficult to investigate harassment claims made long after the alleged incident occurred.” Id. at DEF 38.

         Covenant also promulgates a “Harassment Free Workplace” Policy, which applies to all Covenant employees. Def. Ex. 11 at DEF 65 [Docket No. 24-6]. The Policy provides, in relevant part:

All supervisors and other members of management are held accountable for the effective administration of this Policy. . . . If a supervisor or other member of management is advised of any alleged violation of this Policy, . . . he/she must immediately report the matter to the Human Resources Department or to a senior member of management so that an appropriate investigation can be initiated. Failure to do so will result in corrective action up to and including termination.

Id. at DEF 68. The Policy also directs supervisors to “report harassment claims to the HR Department for investigation as soon as possible, and in most instances, no later than 24-hours of the occurrence.” Id. at DEF 69. Plaintiff was responsible for being generally aware of Covenant's sexual harassment reporting policies. 2015 Pl. Dep. Tr. 75:2-4, Def. Ex. 14 [Docket No. 24-6]. Likewise, Plaintiff knew that he was supposed to report complaints of sexual harassment to Human Resources. Id. 86:24-87:10.

         On or about January 10, 2013, Abigail Geoffney, a Covenant security officer at the time, reported sexual harassment by her supervisor, Norman Reed, to Plaintiff. Def. SOMF ¶¶ 35-36. Plaintiff documented Geoffney's complaints in a Preliminary Description of Incident Form, which he emailed to Covenant's Human Resources Department the same day. Id. ¶ 37. Upon receipt of the complaint, Covenant's Human Resources Specialist, Ashley Dennis, began an investigation into the allegations. Id. ¶ 39. Ultimately, after investigating, Covenant determined that it was unable to substantiate Geoffney's allegations. Id. ¶ 46.

         During the relevant time period, Plaintiff supervised Meegan Wadleigh, a security officer employed by Wadleigh. Def. Ex. 25 ¶ 8 [Docket No. 24-8]. On May 8, 2013, Wadleigh reported to Plaintiff that she had been sexually harassed by another Covenant employee, Scott Tucker. Def. SOMF ¶ 52. Plaintiff documented and signed Wadleigh's complaint, which also included a description of the incident by Wadleigh. Id. ¶ 53. Plaintiff did not immediately send the May 8, 2013 report to Covenant's Human Resources Department, and instead noted: “no witness need proof.” Def. Ex. 27 [Docket No. 24-8]; Def. Ex. 25 ¶ 2; Def. Ex. 28 [Docket No. 24-8]; 2015 Pl. Dep. Tr. 51:18-25, Def. Ex. 14.

         On May 9, 2013, Wadleigh reported a second instance of sexual harassment by Tucker to Plaintiff. Plaintiff documented the complaint, which included Wadleigh's description of the incident, and signed it the same day. Def. SOMF ¶¶ 56-57. Plaintiff did not immediately send the May 9, 2013 report to Human Resources. Def. Ex. 25 ¶ 2; Def. Ex. 28; 2015 Pl. Dep. Tr. 79:19-80:9, Def. Ex. 14. Once again, he wrote “need proof or witness” under “Action to be taken”. Def. Ex. 31 [Docket No. 24-8].

         Wadleigh reported a third incident of sexual harassment by Tucker to Plaintiff on May 31, 2013. Plaintiff documented Wadleigh's description of the alleged harassment and signed the complaint on the same day. Def. SOMF ¶¶ 60-61. Under “Action to be taken”, Plaintiff wrote: “No witness / need someone Goffney [sic] complaint went nowhere. problem!” Def. Ex. 32 [Docket No. 24-8]. Plaintiff did not immediately report Wadleigh's May 31, 2013 complaint to Human Resources. Def. Ex. 25 ¶ 2; Def. Ex. 28; 2015 Pl. Dep. Tr. 86:2-5, Def. Ex. 14.

         On June 14, 2013, Wadleigh reported a fourth incident of sexual harassment by Tucker to Plaintiff. Plaintiff, once again, documented the complaint, including Wadleigh's description of the incident, and signed the form. Def. SOMF ¶¶ 69-70. Under “Action to be taken”, Plaintiff wrote: “will set up [] camera in command center. But only have her word against his, problem.” Def. Ex. 33 [Docket No. 24-8]. Plaintiff did not immediately report this complaint to Human Resources, as required by Covenant's reporting policies. Def. Ex. 25 ¶ 2; Def. Ex. 28; 2016 Pl. Dep. Tr. 136:11-137:5, Def. Ex. 5 [Docket No. 24-5].

         Plaintiff was the only Covenant employee who witnessed Wadleigh complete her four sexual harassment complaints. Def. SOMF ¶ 74. Wadleigh did not report Tucker's alleged sexual harassment to anyone at Covenant, except Plaintiff, during her employment with Covenant. Id. ¶ 76. Plaintiff admits that he did not notify anyone at Covenant of Wadleigh's sexual harassment complaints prior to June 20, 2013. Id. ¶ 83. Plaintiff testified that he did not immediately report Wadleigh's complaints because, in his experience, Covenant did not take sexual harassment complaints seriously unless there was corroborative evidence. 2015 Pl. Dep. Tr. 51:18-25, 88:13-18, Def. Ex. 14.

         On or about June 25, 2013, Ben Goehring, an Operation Specialist at Covenant, called Plaintiff to inform him that Wadleigh was required to report to a meeting on June 27, 2013. During the call, Plaintiff told Goehring that Wadleigh “had complaints of her own.” Id. ¶ 88. Specifically, Plaintiff testified that he “told Ben Goehring that [Wadleigh] had her own complaints, sexual and otherwise.” 2015 Pl. Dep. Tr. 79:9-14, Def. Ex. 14. Plaintiff told Wadleigh to bring her written sexual harassment complaints with her to the meeting and to raise her complaints there. Id. 78:2-22.

         Wadleigh, however, did not inform Covenant of her sexual harassment complaints during the June 27, 2013 meeting. Wadleigh Dep. Tr. 81:4-82:6, Def. Ex. 24 [Docket No. 24-7]. During the meeting, Covenant terminated Wadleigh's employment, purportedly due to poor performance and behavioral issues. 2015 Brown Dep. Tr. 50:4-12, 58:3-10, Def. Ex. 3 [Docket No. 24-4]; Dennis Dep. Tr. 50:12-52:1, 60:14-19, 74:7-13, Ex. 17 [Docket No. 24-7]. Brown, Dennis, Goehring, and Dominic Ferrara, Covenant's Senior Vice-President of Operations, each testified that they were not aware of Wadleigh's sexual harassment complaints at the time of her termination on June 27, 2013. Def. SOMF ¶¶ 105-08.

         That same day, Plaintiff witnessed Tucker make a racial slur about an individual who was driving Wadleigh to her meeting. Id. ¶ 115. Plaintiff completed a Corrective Action Form regarding Tucker's conduct, which he immediately forwarded to Human Resources. Id. ¶ 117. Tucker was suspended that day as a result of this incident. The following day, June 28, 2013, Ferrara terminated Tucker's employment. Ferrara Dep. Tr. 34:22-36:12, Def. Ex. 37 [Docket No. 24-9].

         On July 1, 2013, at 1:07 p.m., Plaintiff sent an email to Dennis, which read, in relevant part: “I documented that Ms. Wadleigh had several complaints, sexual and other, she wanted to report to me however I instructed her to make her complaints in Philadelphia (HR) during her meeting with you and Ben, since I was not involved with investigation. See attached.” Def. Ex. 34 [Docket No. 24-8]. To the email, he attached a Corrective Action Form, dated June 27, 2013, which stated: “Ms. Wadleigh asked to report her own complaints of harassment both sexual and other. She was instructed by me, [due] to the fact she was meeting with Covenant SOS Goehring HR Dennis due to pending matter, on this date at 12pm. I advised I would document her request.” Id.; see also Def. Ex. 26 [Docket No. 24-8].

         The same day, at 1:36 p.m., Plaintiff sent another email to Dennis and Goehring, which read: “And if it was Tucker, you would probably be quite interested in Ms. Wadleigh's sexual harassment complaint, but again I will leave that to you[r] discretion.” Def. Ex. 35 [Docket No. 24-8].

         On July 10, 2013, Wadleigh sent a letter to Brown, in which she claimed that Tucker had sexually harassed her during her employment with Covenant and that she had “made Dave Yeager aware of [the] complaints.” Def. Ex. 39 [Docket No. 24-9]. Brown responded to Wadleigh on July 12, 2013, in relevant part:

Covenant has a zero tolerance policy for all forms of harassment, sexual or otherwise. Covenant takes these types of allegations very seriously . . . . Had you informed the company of your allegations regarding Mr. Scott Tucker earlier, there would have been a prompt and thorough investigation with the necessary action taken, if warranted. Because you chose not to do so, the company could take no action. In this instance, Mr. Tucker's employment with Covenant had ended prior to the receipt of your complaint.

Def. Ex. 40 [Docket No. 24-9]. Covenant, however, did not institute any investigation into the substance of Wadleigh's letter upon receiving it. 2016 Brown Dep. Tr. 28:16-29:1, Def. Ex. 10 [Docket No. 24-6]. Brown testified that Covenant did not believe an investigation was necessary at the time given that both Wadleigh and ...

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