Maria Tara Sutherland v. Wal-Mart Stores, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2214
MARIA TARA SUTHERLAND,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-1218—William T. Lawrence, Judge.
ARGUED NOVEMBER 2, 2010—DECIDED JANUARY 21, 2011
Before CUDAHY, FLAUM, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Maria Sutherland sued Wal-Mart
Stores, Inc., in federal district court. Her allegations
included maintenance of a hostile work environment
based on sex discrimination and retaliation for re-
porting sex discrimination, both in violation of Title VII;
violation of the Indiana Civil Rights Law; battery and
confinement; intentional and negligent infliction of emo-
tional distress; constructive discharge; promissory

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2 No. 10-2214
estoppel; and negligent retention. The district court
granted summary judgment to Walmart as to each of
Sutherland’s claims. Sutherland appealed the grant of
summary judgment as to her hostile work environment
and negligent infliction of emotional distress claims. We
affirm.
I. BACKGROUND
Sutherland and Arturo Aguas worked together in the
deli section of a Walmart store in Seymour, Indiana.
Sutherland worked at Walmart for seven years, often
working with Aguas without incident. Each had a good
employment record with the company until 2006.
Aguas’s tenure at Walmart was not entirely without
incident prior to 2006. Sometime during 2003 or 2004, then-
Walmart employee Sherri Mullins complained to her
supervisor that Aguas had been leering at her and asking
personal questions. Two weeks after the supervisor
confronted Aguas, Aguas gave Mullins a gift and a card.
Mullins again complained to her supervisor; this time,
the supervisor successfully warned Aguas off of any
further contact with Mullins. Sutherland was unaware
of this incident during the time she and Aguas worked
together.
On December 11, 2006, Aguas assaulted Sutherland.
Aguas convinced Sutherland to enter a cooler in the deli
section by telling her she had boxes inside. Once inside,
Aguas grabbed Sutherland and tried to kiss her. Though
Sutherland rebuffed this attempt, Aguas was not easily

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No. 10-2214 3
deterred. He next gave Sutherland an inappropriate
Christmas card—one intended to be exchanged between
romantic partners—then grabbed Sutherland forcefully,
kissed her on the lips, and pressed his pelvis against her.
As Sutherland tried to retreat, Aguas put his hand
inside her shirt and cupped her breast. Sutherland
escaped and told two coworkers—Susan Basil and Debbie
Lalonde—about the incident. She then left work early.
The next day, December 12, Sutherland reported the
assault to a supervisor—Judy Brooks, acting lead of the
deli section. Another employee had already reported
the incident to Brooks.
Walmart’s policy for investigating harassment com-
plaints is to first interview the complaining employee,
then to interview any witnesses, and finally to confront
the accused employee with all information acquired
during the investigation. Upon Sutherland’s report,
Brooks took Sutherland to assistant store manager
Ralph Hixson, and Sutherland provided Hixson a written
account of the assault. Hixson then took Brooks and
Sutherland to store co-manager Randy Ward. Suther-
land—still shaken—could not finish the workday, so
she left early. She also called in sick the next day
at Hixson’s suggestion because she did not feel
comfortable working with Aguas. Later in the day, Ward
interviewed deli employee Marcella Templeton. He
then turned the investigation over to co-manager Steve
Langlais.
On December 13, two days after the assault, Langlais
interviewed Lalonde. She reported her conversations

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4 No. 10-2214
with Sutherland about the incident and told Langlais
she thought Aguas’s Christmas card was inappropriate.
On December 14, Aguas left for an extended vacation in
the Phillippines, and Sutherland returned to work. Man-
agement again met with Sutherland, and Sutherland
provided a detailed written account of the assault. On
December 19, Ward interviewed Basil. She described
her initial post-assault conversation with Sutherland
and told Ward about Aguas’s Christmas card.
On January 2, 2007, Aguas returned from vacation. When
he returned to work, Langlais questioned Aguas while
another manager, Dwayne Wise, acted as a witness.
Aguas admitted hugging Sutherland, putting his face
against hers, and giving her a gift, but denied touching
her inappropriately or giving her an inappropriate card.
Ward and Langlais then conducted follow-up interviews
with Sutherland and Basil and re-interviewed Aguas to
try to confirm Sutherland’s allegations.
At the end of the investigation, the store managers could
not substantiate Sutherland’s allegations of assault. Only
Sutherland and Aguas had witnessed the assault, and
Aguas denied the most serious accusations. Aguas did
admit to embracing Sutherland in the cooler, and other
witnesses substantiated Sutherland’s report of an inap-
propriate card. Ward and Langlais concluded these
incidents were violations of Walmart’s harassment policy.
Ward and Langlais decided not to terminate Aguas.
Instead, they issued Aguas a Decision-Making Day—
Walmart’s most severe discipline short of termination.

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No. 10-2214 5
Aguas’s Decision-Making Day was on January 8. The
event provided no new information about Sutherland’s
allegations. On January 9, Langlais met with Sutherland
and told her the investigation had concluded. Langlais
also told Sutherland that Aguas would be severely repri-
manded, but that management could not substantiate
her most serious accusations.
During the investigation, but after Aguas returned from
vacation, Sutherland was scheduled to work part of her
shift in the deli with Aguas. After she expressed her
discomfort, Hixson allowed her to leave work early.
Hixson and other management then adjusted Aguas’s and
Sutherland’s schedules to minimize their time working
together. By the beginning of February, Sutherland’s
and Aguas’s schedules only overlapped for about
90 minutes each week. When their schedules overlapped,
Sutherland worked on the meat wall, which is roughly
80 feet from Aguas’s position in the deli. Sutherland
commented to Hixson that, though happy to be moved,
she would have preferred to work even farther from
Aguas. Sutherland and Aguas had no further contact
during the length of their respective employments. In
fact, Sutherland later reported that Aguas had inten-
tionally avoided her after the assault.
On January 11, Sutherland reported the assault to the
local police department. The police interrogated Aguas,
who admitted to Sutherland’s allegations after failing a
lie detector test. Aguas later pled guilty to a charge
of sexual battery. On or about March 6, the police pro-
vided Walmart with a report of their findings. Ward then

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6 No. 10-2214
hired an outside investigator to revisit the investigation.
During an interview with this investigator on April 17,
2007, Aguas admitted to the allegations and to lying
during Walmart’s initial investigation. Walmart ter-
minated Aguas that day.
In May 2007, Sutherland took a medical leave of
absence for post-traumatic stress disorder. In Novem-
ber 2007, she was granted additional leave under the
Family Medical Leave Act. By May 2008, Sutherland
had not returned to work, and her Family Medical Leave
Act leave had expired. Walmart terminated her employ-
ment on May 15, 2008.
Sutherland brought various state and federal claims
against Walmart in federal district court. The district
court granted Walmart’s motion for summary judg-
ment as to all of Sutherland’s claims. Sutherland ap-
peals the grant of summary judgment as to her hostile
work environment and negligent infliction of emotional
distress claims.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo, construing all facts and drawing all rea-
sonable inferences in favor of the nonmoving party.
Forrest v. Prine, 620 F.3d 739, 742-43 (7th Cir. 2010). Sum-
mary judgment is appropriate when the full record
shows that there is “no genuine issue as to any
material fact and that the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

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No. 10-2214 7
A. Hostile Work Environment
To demonstrate a hostile work environment under
Title VII, Sutherland must show that she was subjected
to harassment because of her sex, that the harassment
was severe or pervasive enough to create a hostile
work environment, and that there is a basis for
employer liability. Erickson v. Wis. Dep’t of Corr., 469 F.3d
600, 604 (7th Cir. 2006). We, like the district court,
assume Sutherland has provided evidence of harass-
ment because of her sex that was severe enough to create
a hostile work environment. To survive summary judg-
ment, then, Sutherland needed only to introduce
evidence to allow a jury to reasonably infer a basis for
employer liability. Sutherland argues two bases for
Walmart’s liability: (1) failure to prevent the assault and
(2) failure to promptly and reasonably investigate and
remedy the assault.
1. Failure to Prevent the Assault
Without citing any case supporting her theory, Suther-
land argues Walmart is liable because it knew or should
have known Aguas was dangerous to women, but it
did not prevent Aguas from harassing Sutherland. Doing
so, Sutherland ignores this court’s opinion in Longstreet
v. Ill. Dep’t of Corr., 276 F.3d 379 (7th Cir. 2002). In
Longstreet, we rejected the plaintiff’s argument that her
employer should be liable because it was put on notice
by prior complaints about the harasser. Id. at 383. We
explained the employer was not liable for an instance
of severe harassment merely because the employer had

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8 No. 10-2214
notice of “one prior incident which may or may not rise
to the level of actionable harassment and which was not
ignored by the employer.” Id.
The facts here are strikingly similar to those in
Longstreet. Here, Sutherland presented evidence that,
years prior to the assault, former-employee Mullins
complained Aguas had been “leering” at her and had
given her an unwelcome gift and card. Though manage-
ment had to warn Aguas twice, he heeded the second
warning and left Mullins alone. Mullins almost cer-
tainly alleged no behavior rising to the level of actionable
harassment. And Walmart responded reasonably and
effectively with two verbal warnings. Sutherland does
not attempt to distinguish Longstreet, and we reject her
argument of employer liability based on notice of prior
employee conduct.
2. Delayed and Inadequate Response
An employer may be liable for a hostile work environ-
ment created by employees when the employer does not
promptly and adequately respond to employee harass-
ment. Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 636
(7th Cir. 2009). Sutherland argues Walmart’s response
to her allegations was neither prompt nor adequate.
Walmart’s investigation was sufficiently prompt.
Despite Sutherland’s assertion that Walmart “waited
almost three days” to begin its investigation, the record
reveals that it began its investigation the day it re-
ceived Sutherland’s complaint by interviewing Suther-

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No. 10-2214 9
land and fellow deli employee Templeton. Walmart
went on to interview several other deli employees before
confronting Aguas on the day he returned from vacation.
Walmart did not question Aguas immediately after
learning of Sutherland’s accusation because company
policy for investigating harassment provides that man-
agement should confront the alleged harraser only after
acquiring all information available from other sources.
Walmart conducted a prompt investigation in com-
pliance with company policy. Accordingly, Walmart
is not liable for failure to promptly investigate Suther-
land’s claims.
While promptness is a virtue, an employer must also
provide an appropriate response to an employee’s com-
plaints of harassment. Lapka v. Chertoff, 517 F.3d 974, 984
(7th Cir. 2008). To avoid liability, the employer must
respond in a manner reasonably likely to end the harass-
ment. Porter, 576 F.3d at 637. We do not ignore hind-
sight, but the ultimate question is whether the response
was likely to succeed ex ante. See id. (“There is no question
that a stoppage of harassment shows effectiveness . . . .
However, this is not the sole factor to be considered.”
(internal quotation marks omitted)).
Sutherland argues Walmart should have responded
more forcefully to her accusations—it should have fired
Aguas or at least separated Aguas and Sutherland by a
distance greater than 80 feet. But the steps Walmart
failed to take are only relevant if the steps it actually
took were not reasonably likely to end the harassment. Id.

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10 No. 10-2214
We have previously held that, in some circumstances,
creating physical separation and minimizing time
worked together are steps reasonably likely to end harass-
ment. See Roby v. CWI, Inc., 579 F.3d 779, 786 (7th Cir.
2009) (concluding that reprimanding harasser and re-
working schedule to avoid leaving harasser and plaintiff
alone together were “more than reasonable” responses);
Berry v. Delta Airlines, Inc., 260 F.3d 803, 806, 813 (7th Cir.
2001) (holding that employer had responded reasonably
to accusations of harassment when the employer ar-
ranged harasser’s and plaintiff’s schedules so they would
only work together 90 minutes each day, even though
plaintiff and harasser often had contact during this
time). Walmart’s responses here—reprimanding Aguas,
limiting overlap between Aguas’s and Sutherland’s
schedules, and reassigning Sutherland to the meat wall
when she and Aguas were both scheduled to work in
the deli—were reasonably likely to end Aguas’s harass-
ment. As it turned out, Aguas did not further harass
Sutherland. Rather, Aguas intentionally avoided Suther-
land after being reprimanded.
Sutherland argues that, because of Walmart’s notice
of a prior complaint against Aguas, Walmart should be
held to a higher standard than other employers
who receive complaints of harassment. In other words,
because Walmart had notice that Aguas was potentially
dangerous, it should have believed her complaint and
taken more drastic remedial measures. Assuming
Walmart had notice of Mullin’s complaint from 2003 or
2004, Walmart’s response was still adequate. Mullins
complained that Aguas gave her unwelcome attention

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No. 10-2214 11
and an unwelcome gift and card. Knowledge of this
past complaint should not have made Walmart
suspicious of Aguas’s initial statement—that he hugged
Sutherland, touched her face, and gave her a card. While
Mullins’s complaint may have put Walmart on notice
that Aguas was likely to engage in inappropriate work-
place behavior, it did not give notice that Aguas was
likely to engage in the degree of inappropriate behav-
ior—namely, sexual assault—Sutherland described in
her complaint.
C. Negligent Infliction of Emotional Distress
Sutherland also presents an undeveloped argument
that Walmart should be liable for negligent infliction of
emotional distress. She does not clearly argue Walmart
negligently allowed the assault to occur, but we would
have rejected this argument because Walmart had no
notice that Aguas was likely to assault Sutherland or
anyone else. Sutherland also does not clearly argue
Walmart’s post-assault actions give rise to a claim of
negligent infliction of emotional distress, but we would
have rejected this argument too. For despite the obfus-
cating arguments in Sutherland’s brief, Indiana law
requires a showing of physical impact for recovery based
on negligent infliction of emotional distress. Ross v. Cheema,
716 N.E.2d 435, 436-37 (Ind. 1999) (explaining that Indiana
law “maintains the requirement of a direct impact” and
that “the direct impact sustained by the plaintiff must
necessarily be a ‘physical’ one”). Sutherland does not
claim to have sustained any physical impact because of

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12 No. 10-2214
Walmart’s post-assault actions, so her negligent inflic-
tion of emotional distress claim is meritless.
III. CONCLUSION
Sutherland did not present evidence that would allow
a jury to conclude Walmart is liable for the assault com-
mitted against her by Aguas. Therefore, we AFFIRM the
district court’s grant of summary judgment in favor of
Walmart.
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