Alverio, Carmen v. Sam's Warehouse Club ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1971
CARMEN ALVERIO,
Plaintiff-Appellant,
v.
SAM’S WAREHOUSE CLUB, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 3726--Rudy Lozano, Judge.
Argued December 8, 2000--Decided June 6, 2001
Before FLAUM, Chief Judge, and RIPPLE,
and EVANS, Circuit Judges.
EVANS, Circuit Judge. Carmen Alverio
worked as a food demonstrator at Sam’s
Warehouse Club. There, she encountered
assistant manager Terrence Lloyd who, she
claimed, had the disconcerting habit of
laterally adjusting his groin while
wandering the aisles of the store. Lloyd
allegedly began harassing Alverio, and
eventually, after matters worsened, she
filed suit and went to trial. Sam’s Club
argued that Lloyd’s behavior was not
harassing. Alternatively, it asserted the
Ellerth/Faragher affirmative defense
alleging that Alverio failed to take
advantage of the store’s harassment
policy by not telling management of the
situation. A jury found in favor of Sam’s
Club. Alverio then filed a post-trial
motion for judgment notwithstanding the
verdict or in the alternative for a new
trial. The motions were denied. On
appeal, Alverio renews her prior
objections, asserting that peremptory
challenges were used by Sam’s Club to
exclude females from the jury panel and
that admissible testimony was improperly
kept from the jury. In a rather
convoluted argument developed over only a
page and a half of her brief, she claims
she was wronged by the trial judge who
disqualified himself after the trial and
before ruling in her post-trial motions.
We will address the last claim first.
The presiding judge in this case, which
went to trial in October of 1998, was
Robert H. Cleland, a judge on the United
States District Court for the Eastern
District of Michigan. Judge Cleland was
sitting by designation on the United
States District Court for the Northern
District of Illinois. After her defeat at
the hand of the jury, Alverio filed post-
trial motions in November of 1998. The
motions were pending when, on March 19,
1999, Judge Cleland entered an order
removing himself from further
participation in the case pursuant to 28
U.S.C. sec. 455(b)(4). The case was then
reassigned to Judge Rudy Lozano. The
disqualification/reassignment prompted
the filing of a "Supplemental Post Trial
Motion" by Alverio on March 29, 1999,
which in turn caused Judge Cleland to
send a letter to Judge Lozano on April
13, 1999, which stated:
It is my understanding that you have
been reassigned the above-captioned case
upon my recusal decision. I write to
provide additional information in the
wake of the plaintiff’s "Supplemental
Post Trial Motion" seeking a new trial.
The plaintiff assumes too much in her
motion--specifically that the basis of a
need for my sua sponte financial-interest
disqualification existed at the time of
her trial. It did not. The basis arose
long after the trial had been concluded,
and indeed, after the filing of her first
post trial motion in November 1998. I
took action after the possibility of a
conflict came to my attention and I had
confirmed the need for a
disqualification.
Eventually, after certifying that he
reviewed the case and was prepared to
proceed, Judge Lozano entered a thorough,
20-page order on March 16, 2000, denying
all of Alverio’s post-trial motions.
Alverio’s precise point in raising an
issue about the disqualification of Judge
Cleland and the reassignment of the case
to a new judge is unclear. If she is
claiming she went to trial before a judge
who had an axe to grind against her or an
inclination to want to help the defense,
she doesn’t come right out and make that
claim. And that sort of claim would not
be sustainable in light of Judge
Cleland’s clear statement that his need
to step aside didn’t exist until after
the trial was finished.
If, as seems more likely, Alverio’s real
complaint is that she was prejudiced
because Judge Cleland’s disqualification
caused her case to be, in her own words,
"reassigned to a new judge wholly
unfamiliar with the case," that claim is
a nonstarter, given Judge Lozano’s clear
statement where he says:
The Court has reviewed and now certifies
its familiarity with the relevant
portions of the proceedings, including
but not limited to review of the trial
transcript, as they relate to the issues
presented in Alverio’s first post-trial
motion and has determined that it can
rule on Alverio’s first post-trial motion
without prejudice to the parties.
Ideally, one judge handles a case from
start to finish. Particularly, the same
judge handles the trial and post-trial
phases of the case. But that is not
always possible. See Bankcard America v.
Universal Bancard Systems, 203 F.3d 477
(7th Cir. 2000), where even the former
chief judge of this circuit was called
upon to jump into a case after a trial--a
much more complicated trial than this
one, we might add--and before motions
after verdict were resolved. And here,
when Judge Cleland stepped aside, Judge
Lozano stepped in as authorized by Rule
63 of the Federal Rules of Civil
Procedure. While this situation is not
ideal, it certainly provides no basis for
Alverio’s contention that she is entitled
to a do-over of her trial.
With that, we turn to the facts and
Alverio’s other claims for relief.
Alverio worked for Sam’s Club from 1992
until 1996. She began at a Northlake
store but was later transferred to a new
store in Des Plaines, Illinois. At both
locations, she served as a food
demonstrator. Her immediate boss was
Patricia Zemaitis. While at the Northlake
store, she met Lloyd, who was friendly
and asked for her phone number. She
declined his offers, but he continued to
visit her table and make what, according
to her, were inappropriate comments while
adjusting his groin. Eventually, Alverio
was transferred to the new Des Plaines
store, along with Lloyd and Zemaitis.
Sandy Hixon was the general manager of
the Des Plaines store.
While at Northlake, Alverio told
Zemaitis about Lloyd’s inappropriate
conduct. At trial, Zemaitis testified
that Alverio repeatedly asked her not to
tell anyone else about Lloyd’s conduct
and begged her not to file a written
report or approach the general manager.
Rather, Alverio told Zemaitis to "let it
go" and wait and see what happens.
Alverio never reported the situation to
anyone other than Zemaitis.
Allegedly, Lloyd’s harassment continued
until July 1995. Sometime that month,
Lloyd called Alverio into the
supervisor’s office to reprimand her for
making telephone calls on company time.
However, while speaking with her,
herealized that he had made a mistake and
apologized. Alverio then returned to the
demonstration room where she was washing
dishes. According to Lloyd, he followed
her to the demonstration room to smooth
things over. As a gesture of good will,
he began helping her clean up. He stood
beside her at the sink, handing her
dishes. At one point he handed her a
knife and asked if she was going to have
the Mafia kill him for wrongly
reprimanding her. She joked back that he
had better be careful, because a Puerto
Rican knows how to use a knife.
Alverio’s version of this incident
stands in stark contrast to this
exchange. She alleges that Lloyd came
into the demonstration room, grabbed a
butcher knife, and said something about
the Mafia. Then, she contends he touched
her stomach with the tip of the knife and
dragged it across her stomach.
Despite the dramatic events of the day,
Alverio did not report this incident to
anyone before leaving work. Instead, that
evening she told her son, a Chicago
police officer. Her son called the
police, and Lloyd was arrested at work
the next day. He was taken out of the
store in handcuffs and was immediately
suspended by Sam’s Club.
Upon learning of the arrest, Hixon began
an internal investigation. She spoke with
Zemaitis, who told her, for the first
time, that Lloyd had made improper sexual
advances towards Alverio in the past. To
Hixon, Zemaitis claimed that she had not
reported this earlier because "she didn’t
think it was a big deal at the time."
However, at her deposition and at trial,
Zemaitis told a different story, alleging
that she had not reported Lloyd’s
frequent groin manipulation because she
didn’t think it would do any good.
After the knife incident, Alverio took
a few weeks off. When she returned to
work she felt her coworkers and Hixon
were giving her the "cold shoulder," and
so she discussed the situation with the
store manager. Hixon apologized for
appearing indifferent towards Alverio and
applauded her for remaining at work in
the midst of this odd situation. She also
reassured Alverio that eventually people
would forget the incident and relations
with her coworkers would return to
normal.
Lloyd was charged with a crime in
connection with the knife encounter.
Sometime before the start of his criminal
trial, Hixon called Zemaitis into her
office and asked if she planned to attend
the trial. Zemaitis had not been
subpoenaed. Hixon suggested that she not
do so. Zemaitis took this statement to be
a threat.
Lloyd was acquitted of all criminal
charges and was transferred to another
Sam’s Club in Indianapolis. Alverio
continued to work at the Des Plaines
store for another year and a half, until
she was terminated for physical and
verbal abuse of a coworker.
The incident that precipitated her
termination occurred in September 1996,
when she attempted to purchase "code 2"
merchandise--damaged goods which the
store sells at a discount. Mike
DiVincenzo, a cash operator supervisor,
was called to help a cashier process this
purchase because it requires a supervisor
to physically override the regular
pricing system. DiVincenzo overrode the
system, but after doing so, he realized
that an employee, Alverio, was making the
purchase. Employees are not allowed to
purchase "code 2" goods. He explained
this to Alverio, who began arguing with
him. Because a line had formed behind
Alverio, DiVincenzo tried to pull her
cart from the line towards the refund
counter. Alverio refused to leave and
told him that she would not budge until
the situation was resolved. As he
attempted to move her cart, she struck
him three times on the back of the hand
and called him an "asshole." After
investigating this incident, Hixon fired
Alverio.
Alverio then filed suit, alleging sexual
harassment and retaliatory termination.
On summary judgment, the claim of
retaliatory termination was dismissed on
the merits. A jury found in favor of
Sam’s Club on the remaining claim of
sexual harassment.
In order to preserve a motion for
judgment as a matter of law after the
jury verdict has been entered, Federal
Rule of Civil Procedure 50 requires that
a motion for judgment as a matter of law
be made at the close of all evidence. See
Fed. R. Civ. P. 50(b)./1 Alverio failed
to satisfy this prerequisite and thus is
precluded from bringing this motion on
appeal. See Downes v. Volkswagen of
America, Inc., 41 F.3d 1132, 1139 (7th
Cir. 1994)./2
In the alternative, Alverio seeks a new
trial. However "[a]s an appellate court,
our review of the jury trial below is
limited in nature." Gentry v. Export
Packaging Co., 238 F.3d 842, 847 (7th
Cir. 2001). Alverio bears a heavy burden
in convincing us that the district court
should have granted her a new trial. Lowe
v. Consolidated Freightways of Delaware,
Inc., 177 F.3d 640, 641 (7th Cir. 1999).
We will reverse a district court’s denial
of a motion for a new trial only upon a
showing that the court abused its
discretion. Id. We will not re-weigh the
evidence, and we will draw all reasonable
inferences that can be drawn from the
evidence and will view the evidence in
the light most favorable to the
prevailing party--Sam’s Club. Jardien v.
Winston Network, Inc., 888 F.2d 1151,
1154 (7th Cir. 1989). We ask only if the
verdict stands against the weight of the
evidence or if, for other reasons, the
trial was not fair to the losing party.
Pickens v. Runyon, 128 F.3d 1151, 1156
(7th Cir. 1997).
Alverio bases her request for a new
trial on two arguments--improper jury
selection and the exclusion of evidence.
We begin with jury selection. The venire
consisted of 3 women and 11 men. Judge
Cleland conducted voir dire and asked
each attorney to exercise three
peremptory challenges. Alverio struck
three men and Sam’s Club struck all three
women. Alverio raised a Batson challenge,
requiring Sam’s Club to explain each
strike. After reviewing these
justifications, Judge Cleland determined
that the strikes were not motivated by
invidious discrimination.
The rule in Batson v. Kentucky, 476 U.S.
79 (1986), that prohibited the use of
peremptory challenges based on race has
been extended to the exercise of
peremptory challenges that are the result
of intentional gender discrimination, see
J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127 (1994). The right to have jury
members selected based on
nondiscriminatory criteria also applies
in the civil context. See Edmonson v.
Leesville Concrete Co., 500 U.S. 614
(1991).
Under Batson, allegations of
discriminatory peremptory challenges are
evaluated via a three-part mini-hearing:
(1) the opponent of the strike must make
a prima facie showing that the striking
party exercised the challenge because of
a discriminatory reason; (2) the striking
party must next proceed to articulate a
gender-neutral reason for the challenge;
and then (3) the court must determine
whether the opponent of the strike has
carried his burden of proving purposeful
discrimination. Batson v. Kentucky, 476
U.S. at 96-98. "[T]he ultimate burden of
persuasion regarding racial (or gender-
based) motivation rests with and never
shifts from, the opponent of the strike."
Purkett v. Elem, 514 U.S. 765, 768 (1995)
(per curiam).
The parties do not contest the first
step. So, we focus on Sam’s Club’s
proffered reasons and the judge’s
acceptance of these justifications.
However, we keep in mind that "[t]he
trial court’s determination about the
ultimate question of discriminatory
intent is a finding of fact, which will
be overturned only if clearly erroneous."
United States v. Evans, 192 F.3d 698, 700
(7th Cir. 1999). "Once the trial judge
has been persuaded of the neutrality of
the . . . reason for striking a juror, we
have ’no basis for reversal on appeal
unless the reason given is completely
outlandish or there is other evidence
which demonstrated its falsity.’" United
States v. Griffin, 194 F.3d 808, 826 (7th
Cir. 1999) (quoting Morse v. Hanks, 172
F.3d 983, 985 (7th Cir. 1999)).
Alverio argues that Sam’s Club used its
peremptory challenges to systematically
remove women from the jury pool. She
contends that the justification for its
strikes--the lack of business experience
and knowledge--was pretextual and invalid
and argues that this is evidenced by the
fact that the challenged female jurors
had educational backgrounds that were
greater than or equal to that of several
of the empaneled male jurors. Finally,
she asserts that an all-male jury was
particularly unjust, given that the case
involved sexual harassment claims which
are "women’s issues."
Sam’s Club, as we said, struck the three
females: (1) Nancy Kiec, a 38-year-old,
married, unemployed woman with no
children; (2) Robin Braxton, a 38-year-
old mother of three who had worked as a
hospital housekeeper for 3 years; and (3)
Patricia Knorps, a secretary for an
insurance agent, who had completed some
college./3 The attorney for Sam’s Club,
William Holloway, explained that he
struck Kiec because she was unemployed.
He challenged Braxton because she was the
only prospective juror who had been a
plaintiff in a lawsuit and she was
reluctant to discuss the outcome of that
case. As for Knorps, Holloway said he was
concerned that her job put her in contact
with insurance companies and their
lawyers. Since Holloway’s firm was active
in insurance litigation, he was concerned
that she might be familiar with his law
firm, although she did not claim to have
heard of it. In addition, he thought
Knorps had given equivocal answers about
her level of education, stating only that
she completed "some college."
In addition to these particular
objections, Holloway stated that his
overall objection to all three
prospective jurors was their limited work
experience. He stated that he was looking
for jurors with a level of
"sophistication about business and how it
is conducted in the work-a-day world."
While he considered each juror’s
education level, his primary concern was
work-force participation.
As to the second step of the Batson
analysis, lawyers are given considerable
leeway in formulating a gender-neutral
rationale for jury strikes. United States
v. Evans, 192 F.3d at 701 ("Any neutral
reason, no matter how ’implausible or
fantastic,’ even if it is ’silly or
superstitious,’ is sufficient to rebut a
prima facie case of discrimination.")
(quoting Purkett v. Elem, 514 U.S. at
768). Here, in addition to identifying
unique factors that only affected the
three struck jurors--unemployment,
participation as a plaintiff in a
lawsuit, and employment in an insurance
company-- Holloway also identified an
overarching concern, extensive work-force
participation, which he applied
consistently to the entire array. All
remaining empaneled jurors were employed,
and many had considerable work
experience./4
We have approved the exclusion of
potential jurors because of their
professions, see Griffin 194 F.3d at 826,
and their lack of a profession. United
States v. Jones, 224 F.3d 621, 624 (7th
Cir. 2000) (affirming peremptory strike,
where prospective juror was unemployed,
watched soap operas, and was inactive in
her community). We have also held that
inadequate education and business
experience are nondiscriminatory
justifications for excluding prospective
jurors. United States v. Tucker, 836 F.2d
334, 337 (7th Cir. 1988). Moreover, where
a party gives multiple reasons for
striking a juror, it is not enough for
the other side to assert that the
empaneled juror shares one attribute with
the struck juror. Dunham v. Frank’s
Nursery & Crafts, 967 F.2d 1121, 1126
(7th Cir. 1992) (juror challenge rests on
interplay of various factors). Several of
the empaneled jurors may have had less
formal education than the three female
jurors, but Holloway’s decision to strike
was not based on this factor alone.
Because all the women were removed from
the panel, Alverio contends that Sam’s
Club’s proffered reason was pretextual
and rested on a stereotype that women
have less business experience. First, the
exclusion of all members of a specific
minority group does not, on its own,
establish that the peremptory strikes
were discriminatory. Dunham, 967 F.2d at
1126 (affirming peremptory challenge of
only black juror); Tucker, 836 F.2d at
340 (peremptory strikes excluding all
four black venire persons not motivated
by racial bias). Second, we doubt that at
this point in time, women can be said to
have less work experience than their male
counterparts; thus, it is unlikely that
"having business experience" can serve as
a proxy for "male juror." Even were this
true, and Mr. Holloway’s stated reason
had a disparate impact on female jurors,
this would still be irrelevant. United
States v. Roberts, 163 F.3d 998, 999 (7th
Cir. 1998) ("Batson establishes a rule of
disparate treatment not disparate
impact."). The question here is whether
Mr. Holloway had a gender-neutral reason
for striking these jurors. According to
Judge Cleland, he did, and we give great
deference to the judge’s determination of
discriminatory intent. Roberts, at 1000
(on appeal, district judge’s decision
that prosecutor’s lame explanations for
peremptory strikes were honest, must be
accepted). The third step of the Batson
jig requires the judge to make a factual
determination based on Mr. Holloway’s
demeanor and credibility. This is a judg
ment call which the trial judge is in a
much better position to make than we are.
Even were we to find his decision to be
dubious, we would not reverse unless we
were left with a "definite and firm
conviction that a mistake had been made."
Jones, 224 F.3d at 624. Here, we find
that Judge Cleland did not err in
allowing Sam’s Club to strike the three
female jurors from the pool.
Finally, we decline Alverio’s invitation
to find that sexual harassment trials
must necessarily include female jurors.
The idea that one gender is better suited
to hear a class of cases than another, is
itself a sexist concept. Alverio contends
that this trial involved "women’s
issues." We disagree. This trial
concerned an allegedly hostile work
environment created by sexually explicit
comments and gestures. Productive work
environments, free of harassment, are not
merely a woman’s worry, they are a
national concern. Alverio’s assumption
that women, by virtue of their gender,
are better suited to adjudicate these
cases falls prey to the very
stereotypical generalizations that the
Court sought to eradicate in J.E.B. v.
Alabama ex rel. T.B., 511 U.S. at 132-33
(documenting "romantic paternalism" that
justified exclusion of women from
polluted atmosphere of courtrooms).
Moreover, protection from gender-based
discriminatory strikes is not a one-way
street. It is a right that extends to
both genders. Id. at 141.
Next, we turn to Alverio’s argument that
evidence critical to her case was
impermissibly excluded from trial.
Alverio bears a heavy burden in
requesting that we overrule the district
court’s evidentiary rulings. See Speedy
v. Rexnord Corp., 243 F.3d 397, 404 (7th
Cir. 2001). We review the exclusion of
evidence for abuse of discretion and give
considerable deference to the trial
judge. See United States v. Jackson, 208
F.3d 633, 636 (7th Cir. 2000). Thus, even
if a judge’s rulings are found to be
erroneous, they may be deemed harmless if
the record indicates that the end result
of the trial would have remained
unchanged. See United States v. Smith,
230 F.3d 300, 307 (7th Cir. 2000).
First, Alverio argues that Judge Cleland
improperly excluded evidence of the "cold
shoulder" treatment she received from
both male and female coworkers after she
had Lloyd arrested for, as she claimed,
threatening her with a knife. She
contends this was evidence of hostility
towards women at Sam’s Club and the
company’s lack of responsiveness towards
sexual harassment complaints. However,
this circumstantial evidence requires a
long chain of inferences to reach its
ultimate goal. Based on the responses of
rank-and-file workers to a one-time,
unusual occurrence--the arrest of a
coworker--Alverio would ask the jury to
make broad generalizations about the
management policies and general work
environment at Sam’s Club. Even if
relevant, such evidence has limited
probative value, and Judge Cleland acted
within his discretion in excluding it.
See United Stated v. Falco, 727 F.2d 659,
664 (7th Cir. 1984) ("The length of the
chain of inferences necessary to connect
the evidence with the ultimate fact to be
proved necessarily lessens the probative
value of the evidence and may therefore
render it more susceptible to exclusion
as unduly confusing . . . .") (quoting
United States v. Ravich, 421 F.2d 1196,
1204 n.10 (2nd Cir. 1970)).
The second evidentiary question involves
the "threat" allegedly made by Hixon to
Zemaitis about attending Lloyd’s criminal
trial. Again, Alverio asserts that this
was evidence of the hostile environment
at Sam’s Club and alleges that this
evidence would have helped buttress her
argument that Sam’s Club retaliated
against workers who filed complaints.
Again, even if relevant, this evidence
had limited prohibitive value, requiring
jurors to connect the dots in a chain of
inferences. See McCluney v. Joseph
Schlitz Brewing Co., 728 F.2d 924, 928-29
(7th Cir. 1984) (in Title VII retaliatory
termination case, no error in excluding
relevant evidence showing employee’s past
behavior demonstrated concern for female
employees, where evidence had slight
probative value). Judge Cleland held that
allegations concerning a state criminal
matter were too far afield from the
central issue in the case and would serve
to confuse the jury. We tend to agree.
Actions taken by Sam’s Club to minimize
the personnel disruptions caused by a
criminal investigation and trial were not
necessarily indicative of how the
organization routinely reacted to claims
of sexual harassment. Zemaitis held a
supervisory position, and Hixon may have
thought her attendance at the trial was
inappropriate behavior for a manager.
Moreover, Zemaitis testified on behalf of
Alverio at trial and thus was able to
testify directly concerning the
environment at Sam’s Club and her own
response to Alverio’s complaint as a
member of management. Again, even were we
in hindsight to made a different call, we
would not overturn a trial judge’s
assessment unless it is clearly erroneous
and would have affected the outcome of
the trial. See United States v. Fawley,
137 F.3d 458, 466 (7th Cir. 1998)
("[B]ecause it is a comparison of
intangibles, a district court’s Rule 403
balancing is afforded a special degree of
deference: only in an extreme case are
appellate judges competent to second-
guess the judgment of the person on the
spot, the trial judge.") (internal quotes
omitted).
Next, Alverio claims that Judge Cleland
erred in excluding evidence of Sam’s
Club’s alleged retaliatory termination of
her. Judge Cleland excluded this evidence
because it was, in his view,
irrelevant./5 Alverio was terminated a
year and a half after her last encounter
with Lloyd. On summary judgment, the
court had already determined that her
termination was based on a different set
of unrelated facts--her physical and
verbal abuse of a coworker. Admission of
this evidence, which was unrelated to the
material facts and remote in time to the
events at issue, would only serve to
confuse the jury and thus was properly
excluded.
For all these reasons, the judgment of
the district court is AFFIRMED.
FOOTNOTES
/1 "After the 1991 amendment to Rule 50, it is no
longer technically proper to move for either a
’directed verdict’ or for ’judgment
notwithstanding the verdict’; instead, a party’s
motion should be denominated as a motion for
’judgment as a matter of law.’" 9 Moore’s Federal
Practice, sec. 50App.08 (Matthew Bender 3d ed.
1997).
/2 Sam’s Club asserts that Alverio did not make a
motion for judgment as a matter of law at the
close of all evidence. Because Alverio did not
file a reply brief, she did not refute this. The
district court docket does not contain a record
of a motion for judgment as a matter of law
having been filed at the close of plaintiff’s
evidence or at the close of all evidence.
/3 Although at oral argument Alverio bemoaned the
rough and tumble nature of the remaining male
jurors, she struck the three most educated poten-
tial jurors, all of whom held managerial posi-
tions. One, Hetrick, was college-educated and
served as a business director for a food suppli-
er. Another, Chana, was a public school assistant
principal who held a master’s degree, and the
last, Vaseloff, who had an MBA, served as an
electronic engineering manager.
/4 Juror Haskins had been a postal worker for 28
years. Jurors Juday and Hodul had worked 35 and
32 years, respectively. Juror Entona had spent 10
years as an auto repair specialist, while juror
Hawkins had been a machine operator for 7 years.
/5 Although in her brief, and again in oral argu-
ment, Alverio claimed that her retaliation claim
was merely time-barred, it was not. The district
judge granted summary judgment on this claim in
favor of Sam’s Club on the merits.