Carmen Alverio v. Sam's Warehouse Club, Inc.

253 F.3d 933, 2001 U.S. App. LEXIS 11755, 80 Empl. Prac. Dec. (CCH) 40,627, 88 Fair Empl. Prac. Cas. (BNA) 233, 2001 WL 615240
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 6, 2001
Docket00-1971
StatusPublished
Cited by50 cases

This text of 253 F.3d 933 (Carmen Alverio v. Sam's Warehouse Club, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carmen Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933, 2001 U.S. App. LEXIS 11755, 80 Empl. Prac. Dec. (CCH) 40,627, 88 Fair Empl. Prac. Cas. (BNA) 233, 2001 WL 615240 (7th Cir. 2001).

Opinion

TERENCE T. 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. Alver-io 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 posttrial 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. § 455(b)(4). The case was then reassigned to Judge Rudy Loza-no. The disqualification/reassignment prompted the filing of a “Supplemental Post Trial Motion” by Alverio on March 29, 1999, which in turn caused Judge Cle-land 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 *937 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 Zemai-tis 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, he realized 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 *938 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.

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Bluebook (online)
253 F.3d 933, 2001 U.S. App. LEXIS 11755, 80 Empl. Prac. Dec. (CCH) 40,627, 88 Fair Empl. Prac. Cas. (BNA) 233, 2001 WL 615240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmen-alverio-v-sams-warehouse-club-inc-ca7-2001.