Prompt Handling Of Sex Harassment Complaint Keeps Safeway Safe

Kollman & Saucier
Kollman & Saucier
02/18/2014

Employers are very familiar with the legal requirement and legal advice to take prompt action to investigate and respond properly to complaints of workplace harassment.   In a recent decision issued from the federal district court in Arizona last week, Safeway’s prompt and effective handling of a teen-aged cashier’s complaint of sexual harassment precluded a liability finding against the supermarket chain.

In McCormack v. Safeway Stores, Inc., No. 12-2547 (D. Az. Feb. 12, 2014), a teenaged cashier was sexually assaulted by a male co-worker.   The young cashier argued that Safeway should be vicariously liable because Jose Lopez (the harasser) was a supervisor for purposes of Title VII liability.   If true, then Safeway could be held vicariously liable for any harassing behavior that occurred.

Prior to the time he assaulted the cashier, Mr. Lopez was a front-end manager of the store who was in charge of the store during some of the plaintiff’s shifts and during those times, determined tasks she performed and when she took her breaks.  Relying on the recent Supreme Court decision in Vance v.  Ball State University, 133 S. Ct. 2434 (2013), the trial court found that Mr. Lopez was not a Title VII supervisor because he did not have the power to take “tangible employment actions” with respect to the plaintiff. Directing her break time or the tasks she performed during some of her shifts did not equate with  the ability to hire, fire, demote, change her pay, or impose discipline, which is what is required for Title VII supervisory status.

Because Mr. Lopez was a co-worker, and not a supervisor, Safeway would be liable only if its own negligence caused the hostile work environment.  Mr. Lopez sexually assaulted the plaintiff by kissing her and grabbing her buttocks.  In the month prior to that, he had made unwelcome sexual comments and sent the plaintiff thousands (literally) of sexual text messages.  The young cashier, however, told no one about Mr. Lopez’s behavior until after the actual assault.

Although Mr. Lopez had apparently engaged in some inappropriate banter or joking in the workplace, the women involved were not offended, the behavior was not unwelcome, and the court did not find the joking which did not rise to the level of workplace harassment sufficient to put Safeway on notice that Lopez was harassing others in the store.  Upon report of the assault of the young cashier, Mr. Lopez was immediately suspended; Safeway investigated the incident; and he was terminated less than a week later.  Safeway’s quick response and action after the complaint was filed shielded it from any liability for Lopez’s behavior.

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