076: We Can All See Right Through this One

Stella Case No. 076, Originally Published: 14 July 2004

A group of female employees at the Whole Foods Market in Santa Fe, New Mexico, say that in 2000 a customer walked into the store wearing white, see-through bicycle shorts — without underwear. They say they complained to the manager, but the manager failed to throw the customer out of the store.

A short time later one of the women, Maria Bautista, was fired. That was because, the store’s manager says, she had told other employees it was permissible to misuse employee discount cards. Then a second woman, Cindy Medrano, says she was “sexually harassed” by having to see the man in the shorts, but says the store didn’t do anything about it. A third, Vasti Aguilar, jumped in and said she was a diabetic, and the store didn’t accommodate her needs for breaks to tend to her illness. And a fourth, Jeannie Leyba, says she was pregnant and the store “forced” her to quit.

076: We Can All See Right Through this One
The Whole Foods Market logo long before Amazon came sniffing around. (Source: Wikimedia)

A lot of unrelated charges to be sure, but their chain of complaints apparently fell like dominoes after the incident with the man in the shorts. They say the store’s failure to prevent the man from being in their view was negligent, and Bautista says it was her complaint about seeing the man that resulted in her being fired, not any improper actions on her part.

The women thus banded together and sued the supermarket chain for “hundreds of thousands of dollars” in compensatory and punitive damages, claiming the store had violated New Mexico’s Human Rights Act because its managers “fostered” an “environment of discrimination and sexual harassment” by allowing customers to walk around wearing what they considered too-thin clothing — and that caused them emotional distress. They also alleged “negligent supervision” by managers, and Bautista added she suffered post-traumatic stress syndrome for having to deal with the white-shorted man without the manager’s help.

The poor dears.

They still got their day in Santa Fe District Court — eight days, actually. But after the trial, the jury decided they didn’t buy the women’s arguments. The jury found Bautista’s firing justified; it found Medrano never made any formal complaint regarding sexual harassment for the store to take action on; and it found the store indeed accommodated Aguilar’s diabetic condition by giving her the breaks from work she needed. The jury deadlocked, however, on Leyba’s pregnancy argument, with six jurors accepting her version of the story and six agreeing with store managers that they indeed worked hard to give her less strenuous job assignments. Judge Carol Vigil ruled she could try her case again if she wished.

“We’re going to appeal,” Bautista said after the verdicts were handed down. When asked about the appeal the women’s attorney, George Geran, would only say “Miss Bautista is speaking for herself.”

Employers have a duty to provide a proper work environment and to accommodate employees’ medical conditions. But they certainly don’t have a duty to evaluate the fashion statements that various customers wish to make, even if they’re in poor taste, and cover the eyes of adult employees who might object.

More significantly, using a clueless customer as an excuse to label oneself a victim of “sexual harassment” is a slap in the face of countless women (and some men) who suffer real sexual harassment in the workplace, such as unwanted advances from someone who holds the keys to their professional future. The sight of an inappropriately dressed moron deserves a snicker, not a crass line-up at a trough of cash while falsely crying “I’m a victim.”

Either the man’s attire was legal or it was not. And if not, it’s not up to the store’s manager to confront the lawbreaker, it’s up to the police — and the women could have called the police just as easily as the manager could, and sooner if they had to track him down to ask. So who, again, committed any error by not calling the cops? You guessed it: the plaintiffs.

Total time from shorts to getting the short end: a little over three years.


“Workers Suing Over Man in See-Through Shorts,” Reuters, 19 March 2004.

  • “3 Ex-workers Lose Whole Foods Case,” Global Diversity @ Work, April 2004.


Case Status

Thrown out by the jury, as noted.

My 2021 Thoughts on the Case

Dang I was hitting my stride in 2004: I have nothing else to add!

Letters and Comments

Case Update

Despite a humiliating 2002 defeat in a case of a parody of the Barbie doll, Mattel sought to block the freedom of expression of Utah artist and photographer Tom Forsythe, who had created a photographic exhibit showing a Barbie doll “sometimes posed provocatively” with household appliances. Forsythe said he was trying to portray “‘crass consumerism,’ and to me, that’s Barbie.” Mattel sued him, but a federal judge has thrown the case out — and awarded Forsythe more than $1.8 million to cover his legal fees to defend himself, the legal equivalent of a clue-by-four between the toy-maker’s corporate eyes.

The Barbie doll is an American institution, which makes it worthy of comment — including parody. Kudos to Judge Ronald S.W. Lew of the Federal District Court in Los Angeles for making that point very, very clear. “Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous,” Judge Lew ruled. “Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie’s image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act.” The Ninth Circuit Court of Appeal sent the case back to Lew with the suggestion he should consider sanctions against Mattel, so it’s unlikely Mattel will be successful if it tries to appeal the judge’s decision. (Source: “Judge Says Artist Can Make Fun of Barbie”, New York Times, 28 June 2004)

There were also several follow-on comments to Case #74, about the special interest group suing the SciFi Channel over its “reality” show featuring a “voodoo priestess” who, the group said, wasn’t really a voodoo priestess. The most succinct:

Colin, an attorney in New York: “The underlying problem with NARC’s position, and the flaw in Steve in Florida’s reasoning, is that NARC is acting as though it had some kind of property right in the term Voodoo, and therefore a right to keep other people from using it in ways they disagree with. Here’s a newsflash: they don’t. If I want to appear on ‘Larry King Live’ billing myself as a Voodoo priest (or even priestess) — assuming Larry is willing to have me — no one can stop me from doing it.”

That was essentially my own argument in the case’s conclusion. Nice to have that upheld. 🙂

As for the letters, last week’s case where a grieving mother suing everyone under the sun for her son’s foolish choices brought plenty (as usual!)

Don in California: “Let me get something straight: the law in Nevada says that you must be 21 to drink alcoholic beverages, and Mr. Ryan Pisco was 19 at the time of the incident? ‘Drinking his favorite beer’ presumes that he has been drinking long enough to have a preference. Which in turn means that some time has passed since he started drinking. Therefore, it is logical to ‘assume’ that his mother knew or should have known about his preferences before the incident. But despite its illegality, continued to allow her son the violate the law. Then she has the nerve to sue the maker of his choice of alcohol. And Mr. McKenna took the suit?”

You have it straight.

Lee in Georgia: “While I am happy that Coors threatened the lawyer, McKenna, I wish that Coors actually pursued the ‘sanctions for filing a frivolous suit’. Since the original suit was filed, Coors should have gone after McKenna with as much vengeance as McKenna would’ve used against them. If perhaps these only-in-it-for-a-buck lawyers actually got hit with countersuits, sanctions, loss of license, etc. will these stupid lawsuits (and lawyers) stop! Accountability, when [people are] held to it, can do wonders. If such lawyers were eventually, one by one, weeded out by losing their license to practice law, we might have sanity back in the civil courts.”

Charles in California: “A drunk driver killed my sister, and I would never think of suing anyone but the idiot who was behind the wheel. The bartender didn’t drive the car, the Wild Turkey distributor didn’t make him drink and drive, the Ford dealer who sold him the car probably wouldn’t want him running over my sister, and neither would anyone else but the moron behind the wheel. So even coming from the family member of a drunk driving victim, that suit is total stupidity. [The mother] should be sued herself for inflicting this nonsense on the other parties involved.”

My sympathy for the loss of your sister. And indeed, many readers suggested the most worthy person of being sued in this case was the mother.

Dirk, a grain farmer from Illinois (“I suppose my opinion is biased since some of my corn might be used by some brewery”): “I remember a few years ago Coors running commercials with a member of the Coors family asking that people drink responsibly and especially that the company did not want the business of underage drinkers. I turned to my wife and said ‘Can you believe someone selling beer would spend advertising dollars to tell what is without question one of their biggest markets “We don’t want your business”?’ Will we soon be seeing people suing automakers because a family member died while speeding in one of their vehicles, and the car company did not tell customers not to buy their cars if they were going to use them to break the law?”

Could be: I wouldn’t be surprised if there have already been cases where attorneys argue that the automaker is somehow responsible for the actions of a driver in an accident!

Lonnie, an attorney in Arizona: “I disagree with the portion of this Stella award that belittles the suit against the remaining defendants. Negligent entrustment is a valid basis for a lawsuit. Society is served by holding people responsible if they knowingly give a gun to a toddler; the same rationale applies to knowingly giving a 2500lb vehicle to a wasted teenager. If the girlfriend was at the party, and gave Ryan the keys even though she could see he was blitzed out of his mind, that’s negligent entrustment. Is she wholly responsible? No. Almost certainly (unless he was force-fed alcohol or something equally unlikely) Ryan is responsible: he drank, he drove, he crashed.

However, if the mother knew the daughter was going to give the car to the boyfriend while drunk, and gave her daughter the keys anyway, shouldn’t Mom have a level of responsibility comparable to someone who gives his buddies a gun to be used in a bank robbery, but doesn’t actually go to the bank? Similarly, if the other defendants (the homeowner or the tenant) facilitated or encouraged Ryan’s actions, should they be exempt from civil liability?

The real question is did the mother know what was happening (I doubt it), did the girlfriend, the renter, and/or the owner know what was happening (not enough information). I’d wager that the lawsuit asks for some sort of comparative negligence (for example, that Ryan was 91% at fault, party-thrower 5% for giving alcohol to a minor, homeowner 2% for turning a blind eye when this ‘popular gathering spot for minors’ was actually a popular underage drinking spot, girlfriend 2% for giving keys to a drunk and no doubt insistent Ryan). We can argue about how well society is served by a 2% accountability some other day.”

Jim, a police investigator in Missouri: “Although I hate alcoholic beverages (most of my criminal cases and traffic accidents involve persons who are ‘judgment impaired’ from ‘imbibing’), Ms Pisco suing the Coors organization sounds like a shameless attempt to capitalize financially on her son’s tragic accident. In this incredibly litigious society very few people will accept responsibility for their actions. Your newsletter definitely demonstrates to what extreme this is true!

Many would probably say Ms Pisco is much more responsible for not raising her son properly than Coors is for not figuring out how to keep him from drinking beer illegally and driving without a license at a very high rate of speed while intoxicated. If the criminal aspects of those circumstances didn’t stop him, what did she expect could be done by third parties that would work? That being said, Jessica the renter, if she knew about the party and made no attempt to prohibit underage drinking on the premises, and/or allowed Ryan to drive off drunk, and Heather the girlfriend, if, knowing his condition, contributed substantially to Ryan driving her car (like handing a drunk your car keys), should be held partially responsible. That’s about responsibility too, and one shouldn’t be able to act in a negligent or reckless manner with impunity, should they?!”

Unfortunately, my source was not very detailed about the other defendants in the case. As far as I could tell, the homeowner had no knowledge of the party. One could presume the renter did, since it’s reasonable to assume she was there and knew what was going on.

But to answer the question, I do agree that those who knowingly hand car keys to a drunk — adult or not — have some contributory responsibility for what happens next. The girlfriend’s mother didn’t get that choice: it was not alleged she knew anything about it — she gave the car to her daughter, not her daughter’s boyfriend. I find it unlikely that the girlfriend would have handed the kid her keys if she knew he was going to drive drunk, if for no other reason than it puts him and her car in obvious and likely jeopardy. The bottom line: it’s shameful to blame everyone but the person who is actually responsible for Ryan Pisco’s death: Ryan Pisco.

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