IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DANIELLE GARGANO

 Plaintiff,

v.

WYNDHAM SKYLINE TOWER RESORTS,

et al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-1012 (JBS-AMD)

OPINION

APPEARANCES:

Stephanie Ann Mitterhoff, Esq.

BRAMNICK, RODRIGUEZ, MITTERHOFF, GRABAS & WOODRUFF, LLC

1827 East Second Street

Scotch Plains, NJ 07076

Attorney for Plaintiff

John Michael O’Connor, Esq.

EPSTEIN BECKER & GREEN, P.C.

One Gateway Center

Newark, NJ 07102

Attorney for Defendant

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter is before the Court on a motion for summary

judgment brought by Defendant Wyndham Vacation Resorts (“Wyndham”

or “Defendant”). [Docket Item 38.] Plaintiff Danielle Gargano, 1

 In its notice of removal and in other submissions to the 1

Court, Defendant Wyndham explains that the original caption of

this case referred to “Wyndham Skyline Tower Resorts” and

“Fairfield Atlantic City Skyline,” as well as other unnamed

defendants. Defendant asserts that the two named entities are not

legal entities and that Wyndham “is the only proper defendant in

this civil action . . . .” [Docket Item 1 at 1.] Plaintiff does

Case 1:11-cv-01012-JBS-AMD Document 48 Filed 11/02/12 Page 1 of 21 PageID: 659
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.

II. BACKGROUND

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.]

not assert otherwise. 

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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, who was a Wyndham employee, 2

complained that Mr. Lopez pushed a linen bin against the wall

 The parties apparently do not know Victor’s last name. 2

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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. [Docket 3

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

 The transcript of Ms. Barreda’s declaration on this point 3

reads, incoherently, “At that time I remember that I wrote him up

for being – not disrespectful, but for using force against

another employee knowledge.” [Docket Item 40-2 at 74:3-5.]

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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.

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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 Mastercorp employees,

including Mr. Lopez. [Id. at 11-12.] Ms. Barreda did not

elaborate or explain her reasoning to any Wyndham executives.

[Id.]

Mr. Lopez completed Wyndham’s orientation and training

program for new employees, which included a “Respect in the

Workplace” program, and Mr. Lopez was given printed policy

materials that included an explanation of Wyndham’s sexual

harassment policy. [Id. at 13-14.] Mr. Lopez and Plaintiff then

worked together at the resort for about two months without

incident. [Id. at 14.] Wyndham received no complaints about Mr.

Lopez during that period. [Id.]

Plaintiff alleges that on September 11, 2010, Mr. Lopez

followed her into a linen room and assaulted her by grabbing her

arm, “rubbing his private area against her and putting her hand

on his private area.” [Id. at 15.] 

Plaintiff commenced a civil suit against Wyndham and other

defendants, in the Superior Court of New Jersey, alleging that

Wyndham negligently hired, retained or supervised Mr. Lopez.

[Notice of Removal Exh. A at 1; Compl. ¶ 7.]

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Defendant removed the action to this Court on the basis of

diversity jurisdiction, under 28 U.S.C. § 1441. [Notice of

Removal at 1.] Defendant pled that Plaintiff is a citizen of New

Jersey, and Wyndham is incorporated in Delaware, with its

principal place of business in Florida. [Id. at 4.] Plaintiff

demands damages of $2 million. [Id.; Notice of Removal Exh. D.] A

motion to remand the case was dismissed by the Magistrate Judge.

[Docket Item 16.] The Magistrate Judge also dismissed without

prejudice Defendant’s motion to dismiss. [Docket Item 21.]

Defendant brought the present motion for summary judgment.

[Docket Item 38.]

III. DISCUSSION

A. Standard of Review

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). Where the nonmoving party bears the burden of

persuasion at trial, the moving party may be entitled to summary

judgment merely by showing that there is an absence of evidence

to support an essential element of the nonmoving party’s case.

Fed. R. Civ. P. 56(c)(1)(B); Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). However, the Court will view the evidence and

draw any reasonable inferences in the light most favorable to the

nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 552 (1999).

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See also Scott v. Harris, 550 U.S. 372, 378 (2007) (the district

court must “view the facts and draw reasonable inferences in the

light most favorable to the party opposing the summary judgment

motion.”). Summary judgment cannot be granted if a reasonable

jury could return a verdict for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B. Arguments

Defendant Wyndham moves for summary judgment on the grounds

that Plaintiff has produced no evidence that Wyndham knew or

should have known that Mr. Lopez posed a sexual threat to others.

[Def. Br. at 17, 20.] Defendant argues that nothing in the record

indicates that Mr. Lopez “displayed a penchant for sexually

assaulting females . . . .” [Def. Br. at 18.] 

Defendant cites several cases, most from the District of New

Jersey, in which the court granted summary judgment on the

grounds that the plaintiffs did not supply sufficient evidence to

oppose the motion. [Id. at 20-22.] Defendant also details the

evidence that tends to demonstrate that Wyndham exercised due

care in hiring Mr. Lopez, by conducting a background check and

communicating with Mastercorp employees who did not raise any

flags about Mr. Lopez as a sexual threat. [Id. at 23.] Defendant

notes that Mastercorp never received any complaints about Mr.

Lopez by females nor complaints about Mr. Lopez relating to any

sexual misconduct. [Id.]

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Plaintiff opposes the motion for summary judgment. [Pl.

Opp’n at 14.] Plaintiff argues that because Mr. Lopez exhibited

aggressive behavior prior to his hiring - indeed, he had been

fired for refusing to follow a supervisor’s instructions and

threatening the supervisor - that Wyndham knew or had reason to

know that, by hiring him, Wyndham was putting other hotel

employees at risk of physical violence. [Id. at 8.] Plaintiff

asserts that whether Wyndham had foreknowledge of Mr. Lopez’s

“dangerous character” is still disputed. [Id.]

Plaintiff argues that because Mr. Lopez displayed aggression

toward other employees while working for Mastercorp within the

Wyndham hotel, and because Mr. Lopez had pushed the elevator

attendant, that Wyndham was in a position to have knowledge of

Mr. Lopez’s “propensity for violence.” [Id. at 9-10.] Plaintiff

asserts that Wyndham was aware of the incident involving the

elevator operator, because the operator reported the incident to

his supervisor, and Ms. Barreda in turn had a conversation about

it with the front desk manager, a Wyndham employee. [Id. at 4

10-11.] Plaintiff also recalled being told about an incident in

which Mr. Lopez got into a fist fight with a Mastercorp

 Defendant denies that the desk manager “approached Ms. 4

Barreda concerning any alleged incident concerning Mr. Lopez . .

. .” [Docket Item 41-1 ¶¶ 6-8.] Still, Defendant argues that even

if the statements are true, the information is irrelevant because

the desk manager “maintained no authority to hire employees . . .

.” [Id. ¶ 6]

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supervisor on Wyndham grounds. [Id. at 12-13.] Plaintiff argues

that Wyndham should have exercised reasonable care and discovered

Mr. Lopez’s dangerous attributes, such as a propensity to engage

in violent physical altercations with coworkers within the

Wyndham hotel. [Id. at 13.] Plaintiff further argues that by

hiring Mr. Lopez, Wyndham “gave Lopez access to Ms. Gargano, and

allowed him the opportunity to attack her.” [Id.]

In sum, Plaintiff argues that Wyndham knew or should have

known of Mr. Lopez’s “dangerous attributes” prior to his hiring,

because Mr. Lopez used force against the elevator attendant, a

Wyndham employee, and that Mr. Lopez had been fired for

threatening a supervisor. [Id. at 14.] Plaintiff further alleges

that Wyndham should have known about Mr. Lopez’s behavior,

including the rumored fist fight between Mr. Lopez and a

Mastercorp employee, because it occurred on the Wyndham property.

[Id.]

Defendant responds that Plaintiff relies partially on

hearsay, which cannot be considered when deciding a summary

judgment motion. [Def. R. Br. at 3-5.] Specifically, testimony

about a fist fight, and statements by the front desk manager made

to Plaintiff, are not supported by competent evidence. [Id. at 4-

5; Docket Item 41-1 ¶ 8.]

Defendant also argues that because Wyndham conducted a

background check on Mr. Lopez, Defendant exercised due care and

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is entitled to summary judgment. [Def. R. Br. at 9.] 

C. Analysis

The parties agree that New Jersey law applies to this case.

New Jersey recognizes the tort of negligent hiring or retention

of an incompetent, unfit or dangerous employee. Di Cosala v. Kay,

450 A.2d 508, 516 (N.J. 1982). Employers “may be liable for

injuries to third persons proximately caused by such negligence.” 

Id. See also D.T. v. Hunterdon, No. L-961-07, 2012 WL 4448774, at

*10 (N.J. Super. Ct. App. Div. Sept. 27, 2012). 

New Jersey courts refer to this cause of action as having

“two fundamental elements,” see e.g., Hunterdon, No. L-961-07,

2012 WL 4448774, at *10 (quoting Di Cosala, 450 A.2d at 516).

First, employers must have known or had reason to know of “the

particular unfitness, incompetence or dangerous attributes of the

employee and could reasonably have foreseen that such qualities

created a risk of harm to other persons.” Di Cosala, 450 A.2d at

516. Second, “through the negligence of the employer in hiring

the employee, the latter’s incompetence, unfitness or dangerous

characteristics proximately caused the injury.” Id. The “key

element” of the tort is the “foreseeability of the employee’s

wrongful act, or the employer’s knowledge of the employee’s

propensity to so act . . . .” Lo Bosco v. Kure Eng’g Ltd., 891 F.

Supp. 1020, 1034 (D.N.J. 1995) (applying New Jersey law).

At the outset, the Court notes that Plaintiff has not

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adduced any evidence relating to Mr. Lopez’s propensity for

sexual misconduct, let alone that Wyndham knew or should have

known about it. Nor has Plaintiff produced evidence showing that

the facts known about Mr. Lopez rendered his sexual assault

reasonably foreseeable. Mr. Lopez’s criminal background revealed

no convictions, let alone any for sexual crimes, and there is no

evidence that anyone at Mastercorp or Wyndham ever fielded a

complaint by a female employee concerning Mr. Lopez, nor is there

evidence that Mr. Lopez was observed acting in a sexually

inappropriate manner. Mr. Lopez worked for half a year as a

Mastercorp employee, and two more months as a Wyndham employee,

without ever raising any suspicion that he was a sexual threat.

Instead, Plaintiff urges the Court to conflate sexual

assault with general aggression, arguing that evidence of Mr.

Lopez’s volatility or physical altercations creates an inference

that any aggressive act, such as sexual assault, was reasonably

foreseeable. However, the tort of negligent hiring or supervision

requires actual or constructive knowledge by the employer of the

“particular unfitness . . . or dangerous attributes” that

proximately cause the plaintiff’s injuries. Di Cosala, 450 A.2d

at 516 (emphasis added). The injury that Plaintiff suffered,

serious as it was, was sexual in nature. Although Mr. Lopez

allegedly used force, Plaintiff admits in her deposition that

when Mr. Lopez “grabbed” her, he was not “trying to hurt me but .

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. . he was trying to touch my arm and say, Oh, you know you would

like it.” [Docket Item 40-2 at 109:1-5.] The Court in no way

discounts the physical or emotional harm suffered by victims of

sexual assault, but the Court is faced with the question of

whether this particular conduct and injury was reasonably

foreseeable based on the evidence of Mr. Lopez’s other outbursts,

which involved shoving a linen bin and, allegedly, an elevator

attendant out of anger, and defying a supervisor. The Court

concludes, as any reasonable jury must, that it is not. Whatever

impulse that caused Mr. Lopez to react in anger to Victor or his

supervisor was not the same impulse that proximately caused

Plaintiff’s injuries. Force that Mr. Lopez used against Plaintiff

was in pursuit of sexual gratification; force exhibited against

Victor was very different in kind.

The Court finds guidance in a recent decision by the

Superior Court of New Jersey, Appellate Division, involving

negligent hiring and sexual assault. Hunterdon, 2012 WL 4448774,

at *1. There, an employee at a hospital was arrested and

convicted for sexual assault of a teenage volunteer. Id. at *2.

The employee had no prior criminal history. Id. at *1. He owned a

gun, which he had shown to the plaintiff, but his only workplace

infractions, which were reported to his supervisors, were a

shouting match with a fellow employee, tardiness and occasional

disappearances during his shifts. Id. at *2. In affirming the

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trial court’s grant of summary judgment to the defendant

employer, the appellate court concluded that “[t]here is simply

nothing in this record to permit [defendant employer] to have

reasonably foreseen [the employee] would engage in a sexual

relationship with a teenage volunteer.” Id. at *11. 

The Fourth Circuit has decided a case that is even more

analogous to the present action, although that court’s holding

is, of course, not binding precedent from the New Jersey Supreme

Court. In that case, the Fourth Circuit rejected the argument

that sexual assault was a foreseeable result of the employee’s

“‘explosive’ behavior in the workplace.” Baker v. Booz Allen

Hamilton, Inc., 358 Fed. Appx. 476, 483 (4th Cir. 2009). Although

the Fourth Circuit recognized that the employee’s demeanor and

behavior at work was “deplorable” and included “slapping,

throwing, shouting, screaming, [and] yelling,” the court held

that the employer could not reasonably anticipate that the

employee’s actions were “an inevitable prelude to sexual assault.

. . . Slapping a fellow employee simply does not inexorably lead

to criminal sexual assault.” Id. at 479, 483.

The Court is convinced that two isolated, nonsexual

outbursts over the course of several months, which resulted in no

physical injuries nor any damage, could not put Wyndham on notice

that Mr. Lopez was a sexual threat to other employees. The

elevator incident, which allegedly involved Mr. Lopez pushing

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Victor, resembles the shouting match in Hunterdon - a heated,

spontaneous disagreement between employees - and is as

insufficient a predictor of future sexual misconduct here as the

dispute was in that case. Examples of Mr. Lopez’s defiance or

reputation for a quick temper, while suggestive that he might not

be a model employee, do not indicate that sexual assault was

reasonably foreseeable. Plaintiff does not cite any New Jersey

case law holding that evidence of general character flaws or

lapses are sufficiently particular to sustain a negligent hiring

cause of action when the offending conduct is so different in

kind.5

 Defendant cites an unpublished opinion from the Superior 5

Court of New Jersey, Appellate Division, that it argues is

persuasive on the point that even when an employee has a prior

record, summary judgment on a negligent hiring claim is

appropriate where the past misconduct is unrelated to the

dangerous behavior that caused the injury. [Def. R. Br. at 7.]

Defendant attached the opinion to the Defendant’s Reply Brief,

per New Jersey Rule 1:36-3 (“No unpublished opinion shall be

cited to any court by counsel unless the court and all other

parties are served with a copy of the opinion and of all contrary

unpublished opinions known to counsel.”).

In Cartlidge v. Verizon New Jersey, Inc., 2009 N.J. Super.

Unpub. LEXIS 1009 (N.J. Super. Ct. App. Div. Apr. 9, 2009), a

Verizon employee was driving a company van when he began yelling

at the driver in front of him for talking on his cell phone. Id.

at *1. Later, the employee followed the driver into a restaurant

and assaulted him. Id. at *2. The employee had a drug conviction

on his record, as well as several speeding citations,

questionable performance appraisals and disciplinary discussions

in his employment history. Id. at *4-*6. The court rejected the

argument that “evidence of his aggressive nature” in his driving

record could defeat a motion for summary judgment when the

offending conduct was off-road assault. Id. at *6, *8. The

appellate court affirmed. Id. at *13.

The Court views this case as additional confirmation of its

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The Plaintiff’s evidence in the record is not sufficient to

defeat summary judgment. The only evidence that Mr. Lopez ever

exerted physical force against another person is the testimony

about the elevator incident, during which Mr. Lopez allegedly

pushed Victor in the elevator. There is a dispute about whether

Mr. Lopez actually pushed Victor. Mr. Lopez denied pushing Victor

to Ms. Barreda, and Plaintiff has provided no evidence from

Victor or any eyewitness. Ms. Barreda did not witness the

incident and her declaration that Victor said Mr. Lopez pushed

him is hearsay, offered to prove the truth of the matter

asserted. See Fed. R. Evid. 801(c); Fed. R. Civ. P. 56(c)(4) (“An

affidavit or declaration used to support or oppose a motion must

be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters stated.”) However, Ms.

Barreda also testified that she wrote up the incident and

disciplined Mr. Lopez for the “using force” against others.

Viewing this evidence in the light most favorable to Plaintiff,

and assuming for the purposes of this motion that Lopez did push

Victor, one incident of a physical altercation with a male

employee, which resulted in no injury, is not sufficient to put

reading of Di Cosala and Hunterdon, and consistent with the sound

reasoning of Baker: that Plaintiff cannot use evidence of general

aggression or occasional, nonsexual outbursts that never resulted

in injuries, to prove that sexual assault was reasonably

foreseeable.

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Wyndham on notice that hiring Mr. Lopez would put future

employees at risk of sexual assault.

Plaintiff also points to the circumstances of Mr. Lopez’s

termination as further evidence of his general aggression. The

evidence, however, only shows that Mr. Lopez was defiant. The

description of the incident written on Mr. Lopez’s Employee

Counseling Notice merely says that he “refused to follow

supervisor’s direction and came back threatening the supervisor.”

[Pl. Opp’n Exh. C at 2.] There is no competent evidence that Mr.

Lopez resorted to physical violence on this occasion. Again, like

the “shouting match” in Hunterdon, 2012 WL 4448774, at *11, which

did not make sexual assault foreseeable, isolated threatening

words exchanged between Mr. Lopez and his supervisor likewise do

not make sexual assault foreseeable. Moreover, Plaintiff does not

present evidence that Wyndham executives knew or should have

known of this incident, as it happened after Mr. Lopez was

offered employment.

Plaintiff next points to testimony in Ms. Barreda’s

deposition that Mr. Lopez had a reputation for having a quick

temper. Having a quick temper does not make one a sexual threat. 6

But even assuming this reputation made a future sexual assault

 Ms. Barreda also stated in her deposition that other than 6

the elevator incident and supervisor incident for which he was

terminated, she was unable to identify any other occasion where

Mr. Lopez acted aggressive or displayed a bad temper. [Docket

Item 38-3 at 136:16-19.]

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foreseeable, Plaintiff does not present evidence that Wyndham

knew or should have known about Mr. Lopez’s reputation. The only

evidence regarding what Wyndham executives knew, or should have

known, about Mr. Lopez, suggests that Wyndham executives

exercised due care and were not aware of any concerns about Mr.

Lopez. They conducted a background check that revealed no

convictions. Mr. Lopez certified he was not under arrest or

indictment for any pending criminal matter. Mr. Lopez received

policy statements and training about workplace conduct, including

sexual harassment. Wyndham executives also had conversations with

Mastercorp employees who were more familiar with Mr. Lopez and

his work, who did not raise any specific red flags. Wyndham’s

assistant resort manager, Christine Karby, declared that despite

“constant contacts” with both Ms. Barreda and Chris Caussade,

Mastercorp’s district manager, neither informed her of concerns

with Mr. Lopez or his work. [Docket Item 38-5 ¶ 4.] Josette

Caroccio, Wyndham’s human resources manager, declared that she

“was not aware of any concerns relating to Mr. Lopez’s conduct in

the workplace during his employment with Mastercorp.” [Docket

Item 38-6 ¶ 5.] Mr. Caussade declared that he was not aware of

complaints made by any female co-workers against Mr. Lopez and,

when he spoke with Wyndham executives in charge of hiring, he did

not relay any concerns about Mr. Lopez. [Docket Item 38-7 ¶¶ 5,

8-9.] Based on this evidence, no reasonable jury could conclude

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that Wyndham should have known about Mr. Lopez’s reputation, and

even if it did, that sexual assault was a foreseeable risk,

because Mr. Lopez had no reputation related to sexual misconduct.

Plaintiff asserts that Ms. Barreda spoke to a Wyndham

executive and recommended not hiring former Mastercorp employees,

including Mr. Lopez, but Ms. Barreda also stated that she did not

explain her reasoning. [Docket Item 38-3 at 127:18 - 129:17.]

This conversation occurred after Mr. Lopez was hired, and gave

the Wyndham executive no basis for knowing about or suspecting

any “particular unfitness . . . or dangerous attributes” of Mr.

Lopez’s personality. Plaintiff also asserts that Ms. Barreda

spoke with the front desk manager at the hotel, a Wyndham

employee, about the elevator incident, but Plaintiff presents no

evidence that the front desk manager was involved in the hiring

process for Mr. Lopez nor that she ever informed or was under a

duty to inform her superiors about Mr. Lopez. Indeed, those

involved in the hiring process declared they were not aware of

any complaints against Mr. Lopez. Plaintiff presents no other

evidence that Wyndham should have known about any particular

unfitness of Mr. Lopez for his job. Plaintiff merely suggests

that because Mr. Lopez worked in the Wyndham hotel, that Wyndham

executives should have known about his conduct.

Plaintiff also declared in her deposition that Mr. Lopez was

involved in a fist fight at work, but Plaintiff did not witness

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the fight. [Docket Item 40-2 at 178:2-19.] This testimony is

hearsay, as it is a statement made out of court, used to prove

the truth of the matter asserted, and thus cannot be considered

as evidence to oppose the motion for summary judgment. See Fed.

R. Evid. 801(c); Fed. R. Civ. P. 56(c)(4). Plaintiff offers no

other evidence to prove the fist fight took place.

In sum, Plaintiff has presented no evidence that Wyndham

executives knew or should have known about Mr. Lopez’s propensity

for sexual abuse, which is the particular, dangerous attribute

that was the proximate cause of Plaintiff’s injury. Sexual

assault was not a reasonably foreseeable consequence of hiring

Mr. Lopez, based on what Wyndham executives knew or reasonably

could be expected to have known, based on Mr. Lopez’s background

and work history. No person should be subject to the kind of

deplorable conduct that Plaintiff alleges against Mr. Lopez,

however in this case, recovery against Wyndham Vacation Resorts

for that behavior is inappropriate. Thus, Defendant is entitled

to summary judgment as a matter of law. 

IV. CONCLUSION

For the foregoing reasons, the Court grants Defendant

Wyndham’s motion for summary judgment on the single count of 

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Case 1:11-cv-01012-JBS-AMD Document 48 Filed 11/02/12 Page 20 of 21 PageID: 678
negligent hiring or supervision of Mr. Lopez. The accompanying

Order will be entered. 

October 29, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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Case 1:11-cv-01012-JBS-AMD Document 48 Filed 11/02/12 Page 21 of 21 PageID: 679