WEST VIRGINIA RECORD

HUNTINGTON – A homosexual woman claims she lost her job with FedEx because of her sexual orientation and in retaliation for a sexual harassment she had pending against her boss.

Lavon Pauley says she was fired from her position as a courier on March 16 after she nearly 12 years of employment with FedEx.

According to the company, Pauley lost her job after her supervisor, defendant Robert Cowart, received a customer complaint about a delivery Pauley had made.

However, Pauley, who describes herself as a worker who received satisfactory marks on all her performance evaluations, says FedEx used the customer complaint as an excuse to fire her.

In fact, Pauley says the real reason she lost her job lies in the fact that she is the only openly gay employee at FedEx.

"The alleged reason for firing Ms. Pauley from her employment was mere pretext for the real reason – the intentional discrimination by the Defendant against the plaintiff based on her gender and/or her sexual orientation as a gay woman," her suit filed Sept. 13 states.

Not only was Pauley openly gay, but shortly before her firing, she had also filed a sexual harassment complaint against Cowart, according to the complaint.

She says she filed the complaint after Cowart repeatedly belittled her about her performance in front of her male colleagues, completely ignored her on a route he rode with her and repeatedly yelled at her at job sites, calling her "lazy." In addition, Cowart refused to address issues between Pauley and male co-workers, placed her in dangerous situations and placed her in fear of physical harm, the complaint says.

"This includes, but is not limited to, Defendant Cowart's demanding Ms. Pauley deliver a package to a house where a dog had previously bitten her," the suit states.

In another instance, during a closed-door meeting, Cowart "shook his finger at her and yelled that a delivery she had asked about 'was none of her damn business,'" the complaint says. "At the time this occurred, Ms. Pauley believed Defendant Cowart was going to hit her."

After the closed-door meeting, Pauley claims she decided to make her sexual harassment complaint against Cowart and called management on March 4.

"The day after Ms. Pauley made the complaint about Mr. Cowart, Mr. Cowart alleged he received a customer complaint about a delivery of Ms. Pauley's, and on March 16, 2010 – while Ms. Pauley's sexual harassment charge against him was still pending – he terminated Ms. Pauley's employment," the suit states.

Following her termination, Pauley did not receive her final paycheck until one week later – a violation of the West Virginia Wage Payment and Collection Act, according to the complaint. Under the terms of the act, Pauley should have received her final check within 72 hours after her termination, she claims.

In her complaint, Pauley alleges retaliatory discharge against FedEx, saying the company fired her because she filed the sexual harassment complaint against Cowart. She also alleges violations of the West Virginia Human Rights Act, claiming she was also terminated because of her sexual orientation.

In her complaint, Pauley is seeking full payment of all her wages and benefits, plus actual, compensatory and punitive damages, pre- and post-judgment interest, costs, attorney's fees and other relief the court deems just.

FedEx removed Pauley's complaint to U.S. District Court, which has proper jurisdiction over the complaint because FedEx is a resident of a different state than Pauley, the company alleges. In addition, Pauley is seeking more than $75,000, FedEx claims.

"Plaintiff's average annual income from FedEx for 2008 and 2009 was $56,692.42," FedEx's motion to remove states. "Thus, Plaintiff's claim for back pay, if successful, would equal approximately $56,700 for each year from her termination. Assuming the trial in this matter was completed within 18 months of the filing of this Notice of Removal, two years of back pay in the amount of approximately $113,400 would be recoverable from the date of Plaintiff's termination in March 2010 through the date of trial in March 2012."

Hoyt Glazer of Legal Aid of West Virginia in Huntington will be representing Pauley.

Mark H. Dellinger and Joy B. Mega of Bowles, Rice, McDavid, Graff and Love in Charleston and Karen Vaughan McManus of Federal Express Corporation in Memphis will be representing FedEx.

U.S. District Court case number: 3:10-1093