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August 9, 1995


The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 Plaintiff Monica A. Valadez filed the instant complaint against defendant Uncle Julio's of Illinois, Inc. d/b/a Uncle Julio's Hacienda ("Uncle Julio's"), alleging that while working for defendant plaintiff was subjected to a pattern and practice of sexual harassment and sexual discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยงยง 2000e-2(a) *fn1" and 2000e-3(a) *fn2" Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56(c), asserting that the alleged harassment is not protected under Title VII. For the reasons set forth below, the court denies defendant's motion.

 Facts *fn3"

 In 1991, plaintiff became a server at Uncle Julio's of Texas restaurant in Dallas, Texas. In September 1993, plaintiff transferred to defendant's restaurant in Chicago and became a bartender. Plaintiff remained in that position until her termination on January 25, 1994.

 Plaintiff generally worked at Uncle Julio's six days a week. During the relevant period alleged in the complaint defendant employed the following management personnel: Julie Siron ("Siron") was the General Manager; John Moomau ("Moomau") was the Assistant General Manager and supervised the bartenders; Todd Conger ("Conger") was the Kitchen Manager; David Gordon ("Gordon") was the Floor Manager; and DeeAnn Leman ("Leman") was an Assistant Manager. Conger's brother, Jeff Conger ("Jeff"), was a bartender during the relevant period. *fn4"

 Throughout her employment plaintiff alleges that Conger: (1) constantly referred to her vaginal area as her "hot wet little snatch"; (2) told plaintiff about his sexual fantasies involving other waitresses at the restaurant: (3) told plaintiff that he masturbated while reading a magazine; (4) told plaintiff that he "saw some hot women and was [masturbating]"; *fn5" (5) often told plaintiff that he wanted to sleep with or "tag team" both plaintiff and Waitress A *fn6" ; (6) told plaintiff in vulgar terms that he thought the reason that she got her tongue pierced was so that she could have better oral sex; (7) on a few occasions told plaintiff how he envisioned her pierced tongue would feel on his penis; (8) often told plaintiff how he would "like to [have oral sex with] plaintiff and other waitresses at the Restaurant until his face looked like a glazed donut"; (9) on at least 15 separate occasions told plaintiff that Waitress B "had a hot [vaginal area]" and that he wanted "to f her"; (10) referred to his erect penis as a "woodie" or "woodrow" and when Conger saw Waitress B he told plaintiff that "he was getting a woodrow"; (11) once when plaintiff bent over Conger said, "I wouldn't do that if I were you, you might get something you might not like"; and, (12) often commented to plaintiff about various customers who came to Uncle Julio's, saying "I bet she has a hot [vaginal area]" or "look at those knockers on her." Plaintiff also alleges that on one occasion Gordon referred to his penis as a "wonder penis" and told plaintiff that he was "well hung."

 In addition to the above statements, Conger often asked plaintiff to have sex with him, stating he would "change [plaintiff's] ways" if she slept with him. Plaintiff further alleges that on one occasion Conger rubbed his groin against plaintiff. Plaintiff heard Conger make similar comments to Waitress A and heard Gordon tell another waitress that she had "really big tits." Conger's actions were witnessed by plaintiff's fellow employees *fn7" and a customer. In response to these comments plaintiff told Conger that she did not want to hear his sexual comments, to stop making sexual comments to her, and that she thought he was disgusting. Plaintiff alleges that Conger just laughed in reply.

 During plaintiff's employment defendant had employee food policies. Under these policies employees could eat only certain menu items and the food must be ordered through a manager. Plaintiff was aware of these policies and knew that if she wanted to eat a meal at work she had to get a manager to order the food for her, and she was not able to order an item called tacos el carbon ("Tacos").

 On Saturday evening, January 22, 1994, plaintiff and Jeff were tending bar, Leman was working as a "swing bartender," and Moomau was managing. At 10:00 p.m. Leman asked Moomau to check the liquor room before Leman left for the evening. Defendant's liquor room is normally locked and the managers and bartenders have keys. Moomau and Leman went into the liquor room together and discovered a plate of Tacos on a shelf (the "January 22 Incident").

 Moomau asked Leman about the Tacos and Leman denied that the Tacos were hers. Moomau then questioned all of the other bartenders that were on duty that evening. Plaintiff denied having anything to do with the Tacos. Jeff confessed that he had ordered the Tacos. Moomau did not take any remedial actions that night.

 The following Monday, January 24, Moomau met with Siron to discuss the January 22 Incident. Prior to this meeting, Conger told Siron that his brother Jeff had taken the blame for plaintiff who in fact ordered the Tacos. During Moomau and Siron's January 24 meeting, Moomau told Siron that Jeff confessed that he had ordered the Tacos. Siron told Moomau what Conger said and that Leman had also told Siron that the Tacos had been for plaintiff.

 Siron and Moomau then met with Jeff, who told them that he had ordered a plate of food earlier that day from the cook, Marcellino, which was not the plate found in the liquor room. Marcellino admitted that Jeff had ordered and came to get the Tacos. Moomau and Siron met and decided what remedial measures to take. On Monday, January 24, 1994, Moomau met with plaintiff and fired her. Moomau told plaintiff that she was being fired because of the Tacos and for allegedly lying about her involvement. Moomau filled out a termination report that states that plaintiff was discharged because of a "violation of company rules." The "comments section" of plaintiff's termination report states:

Monica was determined to have violated company policy regarding the consumption of food during the shift. It was determined that she was in possession of food for her consumption in an unauthorized part of restaurant for such activity. She was also determined to be in possession of food which is not allowable for her consumption.

 Moomau and Siron decided to demote Jeff rather than terminate him. Subsequently, on March 1, 1994, Jeff was terminated. Conger filled out Jeff's termination report that states the reason for Jeff's termination was "violation of Company Rules"; nothing was written in the comments section.


 Under Fed.R.Civ.P. 56(c), a court should grant a summary judgement motion if "there is no genuine issue of material fact and... the moving party is entitled to judgment as a matter of law." The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a genuine issue of material fact. Id. ; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The burden then shifts ...

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