Co-Worker With History of Sexual Harassment Strikes Twice in the Same Store Says Chicago Employment Lawyer

Chicago, IL (Law Firm Newswire) March 15, 2012 – The plaintiff-appellant in this case was virtually ambushed by a co-worker who had a history of sexual harassment. Her employer did not do much to protect her.

“In SUTHERLAND v. WAL-MART STORES, INC., the plaintiff-appellant sued Wal-Mart in federal court. The allegations in her suit included negligent retention, constructive discharge, intentional imposition of emotional distress, confinement and battery, promissory estoppel, maintenance of a hostile workplace due to sex discrimination and retaliation for reporting sexual discrimination,” outlined Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

Plaintiff Sutherland appealed the summary judgment for Wal-Mart relating to the hostile work environment and negligent infliction of emotional distress. The federal court in turn affirmed.

Sutherland and a man named Arturo Aguas worked together for more than seven years in the deli section of an Indiana Wal-Mart. Both had good employment records until 2006. A supervisor had reprimanded Aguas previously in 2003 for sexually harassing another worker in the same store. He was warned to not contact her further. Sutherland was not aware of this incident.

In 2006, Aguas got Sutherland to go into a cooler on the pretext there were boxes to be unpacked. He grabbed her and tried to kiss her. She pushed him off. He did not give up, and presented her with a romantic Christmas card, then grabbed her again, kissing her and grinding his pelvis against her. While she was trying to get away, he slid his hand into her shirt and grabbed her. Sutherland told two other co-workers and left work. The assault was reported the next day to a supervisor, who already heard about it.

What followed next was a long, drawn out series of interviews, allegations, denials, misunderstandings and an evident inability to communicate in a manner that would resolve the sexual harassment issue. It seems that just about everyone in the store was interviewed and participated in the follow up to this incident, yet no one could substantiate the grabbing incident as it was just between Aguas and Sutherland. The inappropriate card and Aguas’ earlier sexual harassment of another woman were noted, but nothing could be found to give credence to Sutherland’s most serious allegation.

In the meantime, Sutherland expressed discomfort working with Aguas. Management revamped their work schedules so that they only worked together for 90 minutes a week. When Aguas returned from a long holiday in the Philippines, he denied any sexual touching or giving her an inappropriate card, but admitted to hugging her, putting his face against hers and presenting her with a gift. Management did conclude Aguas violated Wal-Mart’s harassment policy, but did not fire him.

Seeing that the case would go no further, Sutherland reported the assault to the local police station. An officer questioned Aguas and failed a lie-detector test relating to the grabbing incident. He pled guilty to sexual battery. Wal-Mart got a copy of the police report and management hired an investigator to re-open the case as Aguas said he did grab her and lied about it. He was fired in April 2007. Sutherland went on medical leave for post traumatic stress and even though she was granted additional leave under the Family Medical Leave Act, she had not gone back to work by May 2008. She was fired and filed a suit against Wal-Mart.

Sutherland appealed the granting of summary judgment relating to her hostile work environment and negligent infliction of emotional distress claims. To win a case based on an allegation of a hostile workplace, the plaintiff must demonstrate she was harassed because of her sex, and that the harassment was severe enough to taint the working environment. She must also prove the reaction by the employer was not adequate or delayed. “In this case, the court found Wal-Mart had followed their harassment policy and promptly started an investigation, and thus were not liable for failure to investigate. They also took steps to mitigate the worker’s contact and stop further harassment. What management could not anticipate was escalation from inappropriate behavior to sexual assault,” Coffey added.

Given the nature of the man’s prior behavior, it would seem reasonable to assume that he had the potential to harass again and to escalate. However, after Aguas’ confrontation with the police, and his admission of guilt, he was promptly fired. Prior knowledge of his behavior did not include any incidents of sexual assault. One might reasonably ask why he was kept on staff with his history of inappropriate behavior towards women.

With regard to the negligent infliction of emotional distress, there must be a showing of physical impact for recovery. Unfortunately, the plaintiff’s claim did not contain an assertion of any physical impact (Ross v. Cheema, 716 N.E.2d 435, 436-37 (Ind.1999)) due to Wal-Mart’s post assault actions, and her claim was dismissed as being without merit.

“This case interests me, as there could well have been another outcome had legal counsel for the plaintiff based the allegations in a proper manner. Cases like this are vitally important to the plaintiff who has suffered at the hands of another. My job would be to ensure they get a fair hearing and to cover all bases in a thorough manner,” Coffey stated. In the final analysis, there was no evidence to decide that Wal-Mart was liable for the assault. Judgment was in favor of Wal-Mart.

Timothy Coffey is a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace. To learn more or to contact a Chicago employment attorney, visit Employmentlawcounsel.com.

THE COFFEY LAW OFFICE, P.C.
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