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Danielle Gargano v. Wyndham Skyline Tower Resorts

October 29, 2012


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, Chief Judge:


This matter is before the Court on a motion for summary judgment brought by Defendant Wyndham Vacation Resorts ("Wyndham" or "Defendant").*fn1 [Docket Item 38.] Plaintiff Danielle Gargano, an employee of Mastercorp, a company that provided cleaning services to a Wyndham hotel on a contract basis, alleges that she was sexually assaulted at the hotel by Luis Lopez, a Wyndham employee. Plaintiff sued Wyndham for negligently hiring Mr. Lopez under New Jersey law. Plaintiff argues that Mr. Lopez had a reputation for a quick temper and was involved in at least two documented incidents of aggression toward other employees that should have put Wyndham on notice that hiring Mr. Lopez put other employees at risk of physical violence. Because Plaintiff has not adduced sufficient evidence to enable a reasonable jury to find that (1) Wyndham knew or should have known about a particular unfitness or dangerous attribute of Mr. Lopez's personality, or (2) plaintiff's injury, sexual assault, was reasonably foreseeable based on Mr. Lopez's record and employment history, the Court will grant Defendant's motion for summary judgment.


Most of the facts in this case are uncontested. Wyndham Vacation Resorts operates a hotel in Atlantic City, N.J. [Def. Br. at 3.] Wyndham contracted out housekeeping services at the hotel to Mastercorp, which employed approximately 60 people at the property, including a district manager, an executive housekeeper, an assistant executive housekeeper, five supervisors and approximately 40 to 50 housekeepers. [Id.]

Plaintiff Danielle Gargano was hired by Mastercorp on February 10, 2010, as a part-time dispatcher, and was promoted to supervisor five months later. [Id. at 4.] As supervisor, Plaintiff's duties included inspecting rooms, overseeing the housekeepers and disciplining housekeepers, if necessary. [Id.]

Luis Lopez began working as a housekeeper at the resort in January 2010. [Id. at 5.] Plaintiff worked with Mr. Lopez two or three days a week, on average. [Id.] Plaintiff and Mr. Lopez did not socialize outside of work, but "would talk" while at work, and Plaintiff admits she "never really [had] a problem" with Mr. Lopez and never disciplined Mr. Lopez for his work or behavior. [Id.] According to Ledia Lane, Mastercorp's assistant executive housekeeper, and Dunia Barreda, Mastercorp's executive housekeeper, Plaintiff and Mr. Lopez worked together without incident. [Id. at 5-6.] Plaintiff never received complaints about Mr. Lopez's behavior, although Plaintiff asserts that she was not in a position to be aware of all Employee Counseling Notices involving Mr. Lopez. [Id. at 6; Pl. Opp'n at 1.]

In the six months that Mr. Lopez worked in the hotel for Mastercorp, Ms. Barreda received two complaints about Mr. Lopez which warranted disciplinary action. [Def. Br. at 7-8.] First, a male elevator attendant, Victor,*fn2 who was a Wyndham employee, complained that Mr. Lopez pushed a linen bin against the wall after Victor told Mr. Lopez he could not get in the elevator with him. [Id. at 7.] According to Ms. Barreda, Victor said that Mr. Lopez also pushed him during the dispute. [Pl. Opp'n at 5.] Defendant denies that Mr. Lopez pushed the attendant. [Def. R. Br. at 5.] Ms. Barreda issued a written disciplinary notice to Mr. Lopez for "using force" against another employee.*fn3 [Docket Item 40-2 at 74:1-5.] Mr. Lopez served a three-day suspension for the incident. [Pl. Opp'n at 5.]

The other incident occurred on July 8, 2010, when Mr. Lopez talked back to a male supervisor after the supervisor questioned Mr. Lopez about why he did not pick up some linens. [Def. Br. at 7.] Mr. Lopez "threaten[ed]" his supervisor, according to the description of the incident in the Mastercorp "Employee Counseling Notice." [Pl. Opp'n Exh. C at 2.] As explained below, Mr. Lopez was terminated after this altercation. [Def. Br. at 11.]

At no time during Mr. Lopez's employment with Mastercorp did female employees complain about inappropriate conduct by Mr. Lopez. [Id. at 8.] Supervisors never received any allegations of inappropriate sexual behavior by Mr. Lopez. [Id. at 15.]

In June 2010, several weeks before the supervisor incident that resulted in Mr. Lopez's termination, Wyndham changed the way it handled cleaning the property. Wyndham decided to hire employees directly to clean public spaces of the hotel, rather than hire Mastercorp to do it, but Wyndham maintained its contract with Mastercorp to clean guest rooms. [Id. at 8-9.] Mastercorp advised some employees that, due to the new arrangement, they would be laid off. [Id. at 9.]

Mr. Lopez was among the housekeepers scheduled to lose his job, and he decided to apply for a job directly with Wyndham. [Id.] As part of the application, he certified that he had never been convicted of a crime and was not under arrest nor indicted for a pending criminal matter. [Id.] Wyndham obtained a background report on Mr. Lopez, which revealed no prior criminal convictions. [Id. at 10.] Before hiring Mr. Lopez, Christine Karby, Wyndham's assistant resort manager, spoke with Chris Caussade, Mastercorp's district manager, who communicated no reservations about hiring Mr. Lopez. [Id.] Wyndham extended a verbal offer of employment to Mr. Lopez on July 7, 2010, which he accepted a few days later, after receiving the offer in writing. [Id. at 10-11.]

On July 8, 2010 - after Wyndham offered Mr. Lopez employment, but before he accepted - Mr. Lopez and his supervisor had a dispute, as described above, and Mastercorp terminated Mr. Lopez. [Id. at 11; Pl. Opp'n Exh. C at 1.] At the time, Ms. Barreda was aware that Mr. Lopez was slated to lose his job. [Def. Br. at 11.] According to Ms. Barreda, a week or two after Mr. Lopez was fired, and after Mr. Lopez accepted the job offer from Wyndham, she told Wyndham's housekeeping supervisor that Wyndham might not want to hire certain ...

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