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ALVERIO v. SAM'S WAREHOUSE CLUB

July 2, 1998

CARMEN ALVERIO, Plaintiff,
v.
SAM'S WAREHOUSE CLUB, Defendant.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is defendant Sam's Warehouse Club's motion for summary judgment. For the reasons that follow, the court grants in part and denies in part defendant's motion.

 I. BACKGROUND1

 Plaintiff Carmen Alverio ("Alverio") worked for defendant Sam's Warehouse Club ("Sam's") from 1992 to September 25, 1996. She worked in the demonstration department. When she started with Sam's, Alverio worked at the Northlake location. She later was transferred to the Des Plaines location.

 While Alverio was working at the Northlake location, she claims that another Sam's employee, Terrence Lloyd ("Lloyd"), sexually harassed her on a number of occasions. Lloyd was an assistant manager at Sam's. Alverio told Lloyd that his conduct made her uncomfortable. Alverio also told her immediate supervisor, Patricia Zemaitis ("Zemaitis"), about Lloyd's harassing conduct. Alverio did not tell anyone else at the Northlake store about Lloyd's conduct. Zemaitis did not tell anyone at the Northlake store about Lloyd's alleged harassment of Alverio; rather, she simply told Alverio that they would have to wait to see if Lloyd did anything else.

 Sometime between 1992 and 1995, Alverio was transferred to the Sam's in Des Plaines. Sandy Hixon ("Hixon") was the general manager of the Des Plaines Sam's. Shortly after Alverio started working at the Des Plaines Sam's, Zemaitis transferred to that store and once again became Alverio's immediate supervisor.

 Lloyd was also transferred from the Northlake Sam's to the Des Plaines Sam's. Alverio claims that after Lloyd transferred to the Des Plaines Sam's, Lloyd again began harassing her. Alverio again discussed Lloyd's conduct with Zemaitis. Zemaitis again told Alverio that she should wait until he does something else. Alverio did not report Lloyd's conduct to anyone in a position higher than Zemaitis.

 Lloyd's allegedly harassing treatment of Alverio continued until one day in July of 1995. On that day, Alverio and Lloyd were working at the Des Plaines Sam's. Lloyd called Alverio into the supervisor's office because he believed that she was making telephone calls on company time and he intended to reprimand her about this. After he had called her into the office, he discovered that he was wrong. Alverio went back to work. She went into the demonstration room and was washing dishes. Lloyd went into the room with her. There was no one else in the demonstration room. Alverio and Lloyd have different accounts of what occurred in the demonstration room at that time.

 Sam's version of what occurred in the demonstration room is as follows: Lloyd went into the demonstration room and apologized to Alverio. As a good gesture, he decided to help her wash dishes. While they were washing dishes, Lloyd handed Alverio a knife. Lloyd was holding the knife by the handle and the blade. As he handed her the knife, Lloyd asked her whether she was going to have the Mafia kill him. Alverio responded that Lloyd had better be careful because a Puerto Rican knows how to use a knife. After Alverio's comment, Lloyd and Alverio both grinned.

 Alverio's version of what occurred in the demonstration room is as follows: Lloyd did not come into the demonstration room and either help her wash dishes or apologize to her. Lloyd came into the demonstration room and grabbed a knife and said something about the Mafia. Lloyd then touched her stomach with the tip of the knife and dragged it across her stomach. Alverio never said that he had better be careful because a Puerto Rican knows how to use a knife or grinned or found any humor during the knife incident in any way.

 Alverio did not report the knife incident to anyone before leaving work that day. Instead, she told her son, who is a Chicago police officer, about the incident later that night. Her son reported the incident to the police. The police arrested Lloyd the next day, after which Sam's immediately suspended him.

 When Hixon learned that Lloyd was being arrested, she came to the store to conduct an investigation. Bob Crumb ("Crumb"), the loss prevention supervisor, also arrived to assist Hixon with her investigation. Hixon and Crumb interviewed Zemaitis. Zemaitis told Hixon and Crumb that Lloyd had made improper sexual advances toward Alverio in the past. Hixon testified at her deposition that Zemaitis told them that she did not report Lloyd's allegedly harassing conduct before because she did not feel that it was important enough. (Hixon. Dep. at 27.) Zemaitis testified at her deposition that she did not report Lloyd's conduct because she was afraid of that she might suffer an adverse employment action. (Zemaitis Dep. at 34.)

 Hixon only spoke one time with Alverio about the knife incident. (Hixon Dep. at 32.) Hixon asked Alverio to make a written statement. (Id. at 44.) Hixon told Alverio that the courts would handle the situation. Hixon did not ask Lloyd to make a written statement as Lloyd was suspended and Hixon had no access to him. (Id.)

 After the knife incident, Alverio took a couple of weeks off. On September 14, 1995, Alverio filed a charge of sexual harassment with the Equal Employment Opportunity Commission ("the EEOC") against Sam's. Alverio continued to work at the Des Plaines Sam's. After the knife incident, employees at Sam's, including Hixon and other supervisors, would not talk to Alverio. Alverio discussed this with Hixon, who told her that in time it would pass.

 Sometime before Lloyd's criminal trial, Hixon called Zemaitis into the receiving office. Hixon asked Zemaitis if she was going to the courtroom to the proceedings. Zemaitis said she was not sure if she was. (Zemaitis Dep. at 63.) Zemaitis had not been subpoenaed to testify at the trial, but Alverio had asked Zemaitis to go to see if she could testify. (Id.) Hixon told Zemaitis that if she were to go to the trial, "things are going to be really difficult for you here when you get back ... and I wouldn't suggest going." (Id.) Zemaitis took that statement as a threat. (Id.)

 Lloyd was acquitted of the charges against him. (See Trial Tr. of People v. Lloyd at 118.) After the trial, Hixon called Alverio into her office. (Hixon Dep. at 48; Alverio Dep. at 48.) Hixon apologized to Alverio for her indifference to her. (Hixon Dep. at 48.) She also applauded Alverio for having continued to work at Sam's even though she had been treated poorly by others after the knife incident. (Hixon Dep. at 48-49; Alverio Dep. at 48.)

 Alverio continued to work for Sam's until Hixon fired Alverio in September of 1996. Alverio was told she was fired because of her involvement in an incident that occurred on September 25, 1996. On that day, Mike DiVincenzo ("DiVincenzo"), a cash operator supervisor at the Des Plaines Sam's, was supervising the front end of the store. DiVincenzo was called over to a cash register because someone was purchasing Code 2 merchandise *fn2" and a cash operator supervisor has to physically override the system in order to sell Code 2 merchandise. DiVincenzo overrode the system. After doing so, he realized that is was Alverio who was purchasing the merchandise. He told her that she could not purchase the Code 2 merchandise. Alverio then argued with DiVincenzo about whether she could purchase the merchandise. (Def.'s 12(M) Statement P 32; Alverio Dep. at 54.) DiVincenzo then tried to pull Alverio's cart out of the aisle so that the dispute could be settled at the refund counter because a line was beginning to form behind Alverio. As DiVincenzo attempted to move Alverio's cart, Alverio refused to leave and told him that she would not leave until the situation was rectified.

 The parties dispute what happened next. According to Sam's, as DiVincenzo attempted to move Alverio's cart, Alverio struck him with her fist three times on the back of his hand and called him an "asshole." According to Alverio, she did not strike DiVincenzo with her fist; rather, she "tapped" his hand because she wanted him to take it off her cart since it contained her purse, checkbook and coat. Alverio admits that she argued with DiVincenzo and that she was nervous and upset during the incident. (Alverio Dep. at 54-56.) However, Alverio denies calling DiVincenzo an "asshole"; rather, Alverio claims that it was DiVincenzo who threatened her by saying that he was going to fire her.

 At this point, DiVincenzo paged Matt Montello ("Montello"), the operations manager, to the refund desk to rectify the situation. Alverio first told Montello that she had not struck DiVincenzo, but then later admitted that she struck DiVincenzo several times attempting to remove his hands from her cart. (Montello Dep. PP 7-8.) *fn3" ...


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