THE CASE OF TROUBLE IN STORE

Based on Stevens v.Vons Companies (2009) 2009 WL 117902 (Cal.Ct.App. unpub.)

[It is September 20, 2002.Diana Lovan and Jenny McGroggan, of Vons' Human Resources Department, have arrived at the office of William Tarter, one of 17 company district managers.They are there to deliver a report of an investigation they have made of a complaint of sexual harassment made to the department the previous month by James Stevens, who had been with the company since 1978 and was now an inventory control clerk at a Vons store in Simi Valley.In that role, his job is to account for all goods delivered to the store through the back door.]

Willliam:Oh, yes, Diana and Jenny, come on in.

[The two women enter and are seated at William's desk.]

Diana:We're ready to deliver our report on the investigation of inventory control clerk James Stevens's complaint of sexual harassment against Laura Marko, the general merchandising manager.Both James and Laura work at store 2047 in Simi Valley.

William:Right, I remember.

Jenny:James claimed that, over the course of the better part of a year, Laura would make comments to him on a daily basis like:

Laura [from her seat in class]:I heard you have a big load.

Jenny:And remark that she liked to sleep between two men.In perhaps his steamiest charge, James claimed that Laura occasionally would stand in front of him holding a feather duster between her legs suggestively, simulating sex.All of this, James said, offended him as a married father and a devout Christian.James also told us:

James [from his seat in class]:Laura is telling people in the store that I am calling her at home, that I am making inappropriate comments and that I am a pervert.I am conducting my own investigation so that I can sue, if necessary.Here are the names of seven employees who will tell you that they have heard Laura make inappropriate sexual comments.

William:Well, what did you do to investigate?

Diana:We interviewed six employees in addition to James and Laura.Five employees said that Laura had made inappropriate sexual comments.Two employees said that Laura had made these comments in front of Paul Barron, the assistant store manager.

William:What did they say Barron did when he heard these comments?

Diana:One of the employees, Rachel Bean, said that:

Rachel:Paul gets all embarrassed and walks away.

Diana:But Rachel also said:

Rachel:Laura told me that she has actually complained about James making a sexual comment to her.I thought it was a joke and made a comment to James and he took it very seriously.He said he never did anything and he seemed upset about it.

William:So what's your bottom line?

Jenny:We have concluded that James's allegations are not substantiated.

William:How do you square that with what you found Laura said to James?

Jenny:Well, although we believe that James validly claimed that Laura was making inappropriate sexual comments, there is insufficient evidence to show that these comments constituted legally actionable sexual harassment of him.

William:Oh, I see.So what do you recommend we do?

Diana:We believe that both Laura and James should be transferred to different stores.We have checked and it is operationally feasible for James to be moved immediately to an opening at store 3080 in this area to fill an inventory control clerk vacancy there.It is not operationally possible for us to move Laura at this time.

Jenny:I recommend that, when we tell James he is being transferred because we have found his allegations unsubstantiated, we also tell him that due to the fact that he investigated this issue prior to reporting it to company representatives, the environment at store 2047 has been disrupted and many employees are uncomfortable.We should make it clear to him that his complaint should have been addressed by the company only.

William:OK.I'll accept those recommendations.I would like to transfer Laura now as well, but I am sure you have verified that there is not an appropriate facility to move her to.One more thing.Jenny, I think you and I should meet with assistant store manager Paul Barron and issue him a written warning for failure to take an appropriate level of corrective action in response to Laura's sexual comments and behavior.Paul's failure to act was in violation of the company's Policy Against Sexual Harassment in the Workplace.

Jenny:Sounds like a plan.

[Jenny exits, but William and Diana remain on stage.It is now a week later and Diana is in the middle of a subsequent meeting with William.]

Diana:James's transfer went off without a hitch, though he was clearly offended when I told him Jenny and I had found that his charges were not substantiated.And Jenny told me that your meeting with Paul in which he was issued a written reprimand went well, too.But when I told Laura she would soon be transferred for safety reasons, she refused to be transferred.She said she would rather quit.

William:It doesn't sound like you told her she was being disciplined or that she had acted in any way inappropriately.Did you?

Diana:No, when you, Jenny, and I met a week ago, we agreed that these transfers would not be disciplinary in nature.

William:Well even though, as district manager, I am responsible for overseeing all personnel issues within this district and have the authority to take disciplinary action when a Vons employee violates company policy, disciplining Laura and other employees is the responsibility of the HR department so I'll trust your judgment.

[Diana exits.William remains on stage.Laura did indeed stay at store 2047 without further incident, voluntarily resigning in September 2003, the month before a union-organized strike at Vons and other major California grocery chains.James continued to work without incident at the store to which he had been transferred until March 2004.]

William:I see from this investigative report that James Stevens has been deliberately giving away private label bottled water to an area community church, the investigator concluded, even though James knew that private label product was not the kind of excess and damaged product he was authorized to give away to charity.I see here that the investigator also concluded that this could not have been the result of some mix-up.I don't need to talk to Stevens about this or any of the witnesses in this report.Sure, I'm aware that this is the first violation of company policy during Stevens's 26 years of employment - at least the first violation we have uncovered.I also know that in James' 2002 job evaluation, James received the highest possible rating of exceptional.And, no, there's no evidence in this report linking James personally to the church that got the water.But we absolutely cannot tolerate theft.Case closed.

[William exits.]

James [from his desk in class]:Case opened.Fired?!After 26 years with a spotless record?For this?An innocent misunderstanding about the company's policy about donating $76.72 worth of the wrong kind of bottled water to a church?And where's the report of the investigator?I've never seen it.I know and Mr. Tarter knows that this is to get back at me for making that sexual harassment complaint a few years ago.It's time for this guy to go shopping . . .for a lawyer.

[And that's what he did, talking to at least 30 attorneys before settling on one to represent him in his lawsuit against Vons.]

whats the legal question?

do you agree with the worker or the company? why? explain.