David G. Campbell I. BACKGROUND Plaintiffs are two women, Mary McCormack and Samantha Stabenchek, who worked as cashiers for a Safeway store in Scottsdale, Arizona. McCormack is the mother of Stabenchek. Stabenchek was 17 years old when she started work at Safeway and appears to have been a minor during the events at issue in this case. On March 3, 2011, Jose Lopez, a general clerk at the store, cornered Ms. Stabenchek, grabbed her buttocks, and kissed her. Plaintiffs allege that the assault was the culmination of months of sexual harassment in which Lopez made inappropriate comments to Stabenchek in the workplace and sent her sexually explicit text messages. After the assault, McCormack reported Lopez’s conduct. Stabenchek participated in Safeway’s internal investigation of the assault, which led to Lopez’s termination on March 26, 2011. Less than a month after reporting the sexual assault, Plaintiffs were both interviewed about McCormack’s alleged violation of Safeway’s coupon policy. Safeway alleges that in late December 2010, a Safeway security analyst reported that it appeared as though McCormack was violating the company’s coupon policies. The analyst allegedly discovered more evidence of coupon abuse, which she reported to a loss prevention investigator in April 2011. The investigator confronted Stabenchek and McCormack in connection with his investigation. McCormack was suspended pending further investigation. Feeling that their honesty was impugned “on the heels” of their reports about Lopez’s misconduct, Plaintiffs resigned on April 13, 2011. Stabenchek has asserted [a] sexual harassment . . . [claim] against Safeway under Title VII of the Civil Rights Act of 1964 . . . (“Title VII”). In addition, Plaintiffs assert that front end managers are supervisors because they have significant decision-making power, including telling employees when to clock out and when to take breaks. But Plaintiffs have provided no evidence that Lopez had any ability to influence Stabenchek’s employment beyond determining the timing of her breaks and the manner in which she performed her job, and Vance states that “the ability to direct employee’s tasks is simply not sufficient” to justify a finding that a manager is a supervisor for purposes of Title VII vicarious liability. . . . Vance requires Plaintiffs to show that Lopez had power to make economic decisions affecting Stabenchek’s employment at Safeway such as the ability to fire, hire, promote, or change Stabenchek’s compensation. Plaintiffs have presented no evidence that Lopez possessed such authority. Plaintiffs’ reliance on Lindquist v. Tanner . . . is misplaced. . . . [I]n Tanner . . . the harasser was able to impact the plaintiff’s employment status. The harasser actively recruited the plaintiff . . . [appeared] that he had the ability to determine whether or not plaintiff would become a full-time employee, and the harasser was the most senior employee on-site. . . . * * * * * Lopez participated in Stabenchek’s hiring process. Safeway has shown, however, that while Lopez sat in on Stabenchek’s initial 5-minute screening interview, . . . , the hiring decision was made by a different Safeway employee after an hour-long interview. . . . In addition, the fact that Lopez was occasionally the person in charge at Safeway’s Scottsdale store is a far cry from the authority required by Vance. Undisputed facts show that Lopez was not Stabenchek’s supervisor as a matter of law. As a result, Safeway cannot be held vicariously liable for Lopez’s harassment. B. Liability in Negligence Where harassment by a coworker is alleged, the employer can be held liable only if “its own negligence is a cause of the harassment.” . . . Thus, an employer is responsible for its own actions or omissions and not for a coworker’s harassment. “If the employer fails to take corrective action after learning of an employee’s sexually harassing conduct, or takes inadequate action that emboldens the harasser to continue his misconduct, the employer can be deemed to have ‘adopt[ed] the offending conduct and its results, quite as if they have been authorized affirmatively as the employer’s policy.’” An employer cannot be held liable for misconduct of which it is unaware. . . . Safeway asserts that it cannot be held liable under a negligence theory because, although Stabenchek claims that Lopez had been making hundreds of sexual comments and sending thousands of sexual messages to her for months before Questions 1. According to the court, under Vance, Lopez was not Stabenchek’s supervisor for purposes of Title VII sexual harassment liability. Why? a. What was the basis for the plaintiffs’ assertion that Lopez was Stabenchek’s supervisor? Explain. 2. Truck driver Lesley Parkins claimed she was a victim of hostile environment sexual harassment while employed by Civil Constructors beginning in 1994. Parkins alleged that coworkers subjected her to foul language, sexual stories, and touching. Parkins complained to her dispatcher, Tim Spellman, and to one of her purported harassers, Robert Strong. She saw the job superintendent and the company EEO officer almost daily, but she did not complain to either. In 1996 Parkins filed a grievance with her union—Teamsters Local 325. The union contacted the company EEO officer, who immediately launched an investigation that led to punishment for the employees. Parkins conceded that she was not harassed following the company punishment. Parkins filed suit charging Civil Constructors with sexual harassment. Parkins claimed that two of her harassers, Strong and Charles Boeke, were foremen who supervised her work. Assuming Parkins can prove that she was, in fact, sexually harassed, what must she prove in order to hold Civil Constructors liable? See Parkins v. Civil Constructors of Illinois, 163 F.3d 1027 (7th Cir. 1998). 3. Eileen Craig worked for the Mahoney Group as the branch manager in Tucson and reported to Leon Byrd, the interim president. Over the course of several months, Byrd made repeated inappropriate comments to Craig about her legs and how she should wear shorter skirts. Although Craig thought the comments were obnoxious, she was not particularly offended. At Byrd’s invitation, Craig met him for drinks after work at a restaurant, as they had done previously to discuss work-related matters. After Byrd made a sexual proposition, Craig laughed and shook her head but did not leave the restaurant. Byrd later followed Craig into the restaurant’s restroom, grabbed her and kissed her. Craig did not report this incident. Byrd made further advances to Craig which she rejected. At some point Byrd told Craig that he didn’t think he could work with her anymore. Craig finally reported Byrd’s conduct under the company’s sexual harassment policy. The company took immediate action: Byrd was instructed to stay away from Craig and to stop making sexual comments to her, and Craig began reporting to another company executive. The investigator retained by the employer recommended, among other things, that Byrd receive a reprimand and training. At the end of the investigation, Craig began reporting again to Byrd. Eventually, Craig resigned and filed complaint asserting a Title VII sexual harassment claim. a. Is Mahoney liable for quid pro quo sexual harassment? What questions would you have if you were on the jury? Explain. b. Is Mahoney liable for hostile work environment sexual harassment? What other facts might you need to know before deciding? Explain . 4. A female employed as an Installation and Repairs Technician claimed a hostile work environment was created in the garage in which she worked by the routine use of profanity, crude humor, vulgar graffiti depicting sexual acts, and especially by sexually demeaning conversations conveying a profound disrespect for women. While the comments and graffiti demeaned some male employees, the conduct was directed at all the women working in the garage. a. In deciding whether the conduct constituted hostile environment sexual harassment, should the court evaluate the facts from the point of view of a “reasonable person” or a “reasonable woman”? Explain. b. Why does it matter? See Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004); see also Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).
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