Facts Do Not Support Employer Liability For Hostile Environment
SUTHERLAND v. WALMART STORES (January 21, 2011)
Arturo Aguas and Maria Sutherland worked together in the deli section of a Walmart store in Seymour, Indiana. They had worked together for years without incident -- but that changed on December 11, 2006. On that day, Aguas assaulted Sutherland in the deli cooler. He kissed her and fondled her and gave her an inappropriate Christmas card. Sutherland reported the incident to her supervisor the following day. A Walmart manager interviewed one co-worker on that day and another co-worker the following day. They continued their investigation throughout December, while Aguas was on vacation. When confronted upon his return, Aguas admitted some inappropriate conduct but denied the most serious allegations. The company decided that it could not substantiate all the allegations but disciplined Aguas severely for those that they could substantiate. The company also adjusted both employees' time schedules so that they rarely worked at the same time and also assigned them to workstations almost 80 feet apart when they did work together. Not satisfied with the company's response, Sutherland filed a police report. The police investigation was more successful than the company's. Aguas ultimately admitted the allegations and pled guilty to a sexual battery charge. Walmart revisited its investigation and terminated Aguas' employment. Sutherland took medical leave shortly thereafter for stress. Walmart terminated her employment when she failed to return to work, even after her leave expired. Sutherland brought suit against Walmart, alleging a hostile work environment and negligent infliction of emotional distress. Judge Lawrence (S.D. Ind.) granted summary judgment to Walmart. Sutherland appeals.
In their opinion, Seventh Circuit Judges Cudahy, Flaum, and Kanne affirmed. The Court assumed that the harassment was severe enough to create a hostile work environment and addressed only the issue of employer liability. Sutherland presented two theories -- a failure to prevent the assault theory based on an incident two or three years earlier in which Aguas was accused of harassment and a failure to investigate theory. The Court rejected the first theory based on its opinion in Longstreet in which it found no employer liability on very similar facts (one prior incident, probably not rising to the level of actionable harassment, properly investigated). On the second theory, the Court conceded that employer liability can arise when its investigation is not prompt and adequate. Here, the Court found that Walmart's investigation was prompt and adequate and that its corrective actions were reasonably likely to end the harassment. There is, therefore, no basis for employer liability and summary judgment was proper. The Court also rejected Sutherland's "underdeveloped" negligent infliction of emotional distress claim. To the extent the claim is based on pre-assault actions, it fails because Walmart was not on notice that Aguas was likely to assault her. To the extent that the claim is based on post-assault actions, it fails because Sutherland has not even alleged a physical impact, a requirement of Indiana law.
Michael Lewis and Tammy Livingston, employees of Philip Services Corporation, were performing maintenance work at a CITGO refinery when they were allegedly exposed to a hazardous gas. Emergency personnel responded, they went to the hospital, they received a full medical examination, they were released, and they returned to work the next day. Several years later, Lewis and Livingston asserted common-law negligence claims against CITGO. Livingston also asserted a negligent infliction of emotional distress claim. Their claims were supported by two physicians -- -- Dr. Jordan Fink, a doctor of internal medicine, and Dr. Norman Kohn, a psychiatrist and neurologist. The court granted summary judgment to CITGO, holding that the plaintiffs had failed to satisfy their burden of demonstrating the reliability of the expert testimony. Lewis and Livingston appeal.