SEARS Department Store in North Hollywood, California, hired Alejandro Gamiz in 2005 as a maintenance worker. From 2009 to 2012, while working for Sears, Gamiz created peep holes in the women’s restrooms and dressing rooms and the children’s dressing rooms in order to spy on them while they’re undressing in these rooms. Gamiz also installed video equipment to record the women and children in the restrooms and dressing rooms and uploaded some of the videos to the internet. Over 1,000 women were victimized. Sears’ loss and prevention unit eventually discovered the crime. It fired Gamiz and had him arrested. Gamiz was sentenced to one year in jail and three years of probation.
A group of Gamiz’s victims who are Sears’ employees and customers, filed a class action lawsuit against Sears for, among other things, negligent hiring, negligent supervision, violation of the right to privacy, intentional infliction of emotional distress, hostile work environment, harassment, and retaliation.
The victims alleged in their complaint that Gamiz had exhibited suspicious behavior throughout the course of his employment with Sears. Sears’ surveillance videos showed Gamiz often supposedly performing maintenance work in the women’s restrooms and dressing rooms and the children’s dressing rooms, when no maintenance was needed. Because he was able to prevent access to these areas, he had the opportunity to drill the peep holes and install the video equipment.
However, despite Gamiz’s suspicious behavior, the victims alleged that Sears never questioned their employee’s conduct. The victims accused Sears of intentionally turning a blind eye to Gamiz’s behavior, which allowed him to violate the privacy of women and children as they undressed or used the restrooms. Worse, Sears’ neglect in supervising their employee further allowed him to record these women and children and upload their images to the internet.
Sears asked the court to dismiss the case, stating that Sears should not be held responsible for Gamiz’s criminal conduct. Sears argued that the company had conducted a background check on Gamiz which came back clear. Sears also said that peeping was a rare occurrence and that Gamiz’s conduct was so “bizarre” that it was unforeseeable. Additionally, Sears stated that its loss and prevention unit was focused on preventing employee and customer theft, not peeping, and so overlooked Gamiz’s activities.
The trial court rejected Sears’ request to dismiss the case, ruling that the law imposes an affirmative duty of care to protect customers and employees. Since Sears created the dressing rooms and restrooms for the use of customers and employees, Sears needed to make these areas reasonably safe by supervising male employees who had access to these rooms.
Even though Sears had a store policy of restricting male employees from dressing rooms during store hours, unless accompanied by a manager or loss prevention employee, and prohibiting the use of video equipment in these areas, Sears did not adhere to this policy in the case of Gamiz, allowing him free to these areas.
The court also noted that another Sears employee in Virginia had been caught spying on women in dressing rooms. Thus, the company knew that peeping was possible, and that it was not such a rare occurrence. There was little harm to Sears if it trained employees already monitoring the dressing rooms to also check for signs of peeping.
In rejecting Sears’ arguments to dismiss the case, the parties may be proceeding to trial scheduled for January next year.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.