Sutherland v. Wal-Mart Stores, Inc.
2011 U.S. App. LEXIS 1187
| 7th Cir. | 2011Background
- Sutherland, a Wal-Mart employee, alleged a hostile work environment and other claims arising from Aguas's 2006 assault in the Seymour, Indiana store.
- Aguas previously faced a prior complaint of inappropriate conduct by Mullins in 2003–2004, which Walmart warned him about.
- Sutherland reported the assault on December 12, 2006; Walmart conducted an investigation following its harassment policy.
- Walmart reprimanded Aguas, limited schedule overlap with Sutherland, and reassigned Sutherland to minimize contact, but did not terminate Aguas initially.
- By early 2007, investigation results concluded the most serious allegations could not be substantiated; Aguas was eventually terminated in April 2007 after an outside review.
- Sutherland took medical leave for PTSD in 2007 and was terminated in May 2008 after her FMLA leave expired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Walmart is liable for a hostile environment due to harassment by a co-worker | Sutherland argues Walmart failed to prevent the harassment. | Walmart maintains it acted promptly and reasonably. | No, Walmart not liable; actions reasonably likely to end harassment. |
| Whether Walmart's response to the harassment was prompt and adequate | Walmart delayed investigation and failed to take stronger measures. | Investigation began promptly per policy; steps were reasonably likely to end harassment. | No, Walmart's response was prompt and reasonably likely to end harassment. |
| Whether Walmart is liable for negligent infliction of emotional distress | Walmart's post-assault actions caused distress; foreseeability not contested. | Indiana requires a direct physical impact for NIED; no such impact here. | No, NIED claim fails due to lack of physical impact. |
Key Cases Cited
- Longstreet v. Ill. Dep't of Corr., 276 F.3d 379 (7th Cir. 2002) (prior notice alone not sufficient for employer liability)
- Porter v. Erie Foods Int'l, Inc., 576 F.3d 629 (7th Cir. 2009) (adequacy of response assessed ex ante for effectiveness)
- Roby v. CWI, Inc., 579 F.3d 779 (7th Cir. 2009) (reassignment and setting boundaries can be reasonable end to harassment)
- Berry v. Delta Airlines, Inc., 260 F.3d 803 (7th Cir. 2001) (scheduling changes to reduce contact can be reasonable response)
- Lapka v. Chertoff, 517 F.3d 974 (7th Cir. 2008) (employer response must be reasonably likely to end harassment)
- Erickson v. Wis. Dep't of Corr., 469 F.3d 600 (7th Cir. 2006) (standard for hostile environment includes employer liability inquiry)
- Ross v. Cheema, 716 N.E.2d 435 (Ind. 1999) (NIED requires physical impact under Indiana law)