Law, Business and Society 11th Edition by Tony McAdams

Exercise 7

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").
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III. HARASSMENT CLAIMS
Title VII provides that an employer may not "discriminate against an individual with respect to [her] compensation, terms, conditions, or privileges of employment because of [her]... sex[.]"… Sexual harassment constitutes unlawful discrimination under Title VII. Meritor Sav. Bank v. Vinson…. If the harassing employee is the victim's coworker, the employer may be held liable only if it was negligent in controlling working conditions. Vance v. Ball State Univ.…" In cases in which the harasser is a 'supervisor,' however, different rules apply, "and the employer may be held vicariously liable."…
A. Vicarious Liability
Safeway asserts that it cannot be held vicariously liable for Lopez's harassment because Lopez was not Stabenchek's supervisor. "[A]n employee is a 'supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim." Vance… "The ability to direct another employee's tasks is simply not sufficient" to give rise to "supervisor" status. Instead, supervisors are a "distinct class of agent [empowered] to make economic decisions affecting other employees under his or her control.… Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates."… [internal quotation marks and citation omitted] [emphasis in original],
Lopez was a front end manager when Stabenchek became an employee at Defendant's Scottsdale location, but he had been demoted to general clerk by the time much of the alleged harassment took place, including the sexual assault. The distinction is not important, however, because neither front end managers nor general clerks qualify as supervisors under Vance. Front end managers and general clerks lack authority to make economic decisions affecting other employees under their control. Front end managers and general clerks are not empowered by Safeway to hire, promote, demote, fire, increase pay, decrease pay, or impose any economic change on any employees.
Plaintiffs assert that Lopez was Stabenchek's supervisor under Vance because he was in charge of the store during some of Stabenchek's shifts and because he sat in on Stabenchek's initial job interview and assured her that she would get her hired. Plaintiffs have presented evidence that front end managers occasionally directed other employees to sign documents that Safeway "uses to bind their employees."
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…. [l]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.…
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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 the March 3 incident, Stabenchek never told anyone about any alleged harassment until March 5, the day before McCormack reported it to Safeway. Plaintiffs rejoin that Safeway can be liable because one of Safeway's managers observed Lopez harassing Stabenchek and did nothing to stop it.
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Stabenchek testified that about one month before the sexual assault, Megan Oxford, a second assistant manager, approached Stabenchek about an incident Oxford had witnessed. Oxford told Stabenchek that she saw an exchange between Lopez and Stabenchek after which Stabenchek looked at Lopez like she was disgusted. Oxford had not heard what Lopez said, but she urged Stabenchek to share anything that Stabenchek thought Oxford needed to know. Stabenchek declined to share any specific information with Oxford because she was uncomfortable and embarrassed. Oxford again asked Stabenchek if she wanted to report anything, but Stabenchek responded that Lopez was just being a "creep" and that she did not want to report anything.
Oxford's observations, and Stabenchek's subsequent responses to Oxford's questions, did not put Safeway on notice of Lopez's sexually harassing conduct toward Stabenchek ….
Although Stabenchek told Oxford that Lopez was being a "creep," that uninformative comment was not enough to communicate that Lopez was sexually harassing Stabenchek.
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Once Safeway actually learned of Lopez's sexually harassing conduct, it took prompt corrective action. Stabenchek told her mother about the Lopez's harassment on Saturday, March 5. McCormack told second assistant manager Ryan on Sunday, March 6. By Monday, March 7, the store manager, Anthony Duran, and a human resources advisor, Joyce Cameron, initiated an investigation of the incident. Lopez was interviewed later that day and was immediately suspended pending the results of the investigation. Lopez never returned to work at Safeway and was fired….
IT IS ORDERED that Defendant's motion for summary judgment is granted.
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.