sex, male or female, would clearly state a cause of action under Title VII").
Defendant argues that because Conger was aroused by the fact that plaintiff is a lesbian his subsequent conduct is not actionable. Whether plaintiff would have enjoyed having sex with Conger is not the issue. The "critical issue" is whether plaintiff as a female was exposed to "disadvantageous terms or conditions of employment" to which defendant's male employees were not exposed. Harris, 114 at 372 (Justice Scalia, concurring opinion); Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 990 n.55 (D.C. Cir. 1977) (legal question to ask in sex harassment cases is whether a condition was imposed "which, but for his or her sex, the employee would not have faced).
In the instant case, it is uncontested for purposes of defendant's motion for summary judgment that on many occasions Conger crudely discussed his desire to engage in sexual activities with plaintiff and other female employees, both lesbian and non-lesbian. Conger's sexual comments and advances were made to plaintiff in the first instance because she was a woman as well as a lesbian. There is no evidence that Conger made similar comments to hetero- or homosexual men or asked any of defendant's male employees to have sex with him. Other waitresses, both heterosexual and homosexual, testified that Conger made vulgar comments of a sexual nature to them.
There is uncontested evidence that plaintiff repeatedly told Conger to stop making these comments and that he disgusted her. Plaintiff testified that Conger's repeated comments and conduct made her embarrassed, uncomfortable, upset and anxious, and made it harder for plaintiff to perform her job.
The court finds that the holdings in Ulane and other sexual orientation cases are inapplicable to the facts in this case. Further, based on plaintiff's uncontested testimony and the corroborating testimony of Waitress A and Waitress C, the court finds that Conger's conduct towards plaintiff was gender based and as such, constitutes actionable sexual harassment.
Defendant next argues that because defendant believes that Conger's acts are not actionable, plaintiff's allegation that Gordon only sexually harassed her on one occasion is insufficient grounds to maintain a hostile work environment claim. "To maintain a claim of a hostile work environment, [plaintiff] must allege conduct that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment." Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995).
It is uncontroverted that on nearly every shift plaintiff worked Conger refereed to her vaginal area as her "hot wet little snatch," and that other employees and customers overheard these comments.
Further, Conger often asked plaintiff to go to bed with him, and 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." The court finds that even in today's media, with its "life-like" language, these comments could not be repeated on prime time television. Even a "contemporary woman" in tune with "American popular culture in all its sex-saturated vulgarity" would find these comments offensive. Baskerville, 50 F.3d at 431.
Having found that Conger's alleged conduct is actionable, the court finds that Conger's alleged "uninvited sexual solicitations" and "obscene language" constitute sexual harassment and that the ongoing nature of the incidents involving Conger along with the incident involving Gordon are sufficient to state a claim for a hostile work environment. Accordingly, the court denies defendant's motion for summary judgment on plaintiff's hostile environment claim.
Originating in its reply brief, defendant argues that plaintiff fails to establish that defendant had the requisite notice to be held liable for Conger and Gordon's conduct. Although the court must deny this argument because defendant failed to raise it in its original brief, the court will address the relevant standards and evidence in the record to assist the parties with respect to this issue. See, Edwards v. Honeywell, Inc., 960 F.2d 673, 674 (7th Cir. 1992) (a court is precluded from granting summary judgment on a ground that was first raised by the movant in its reply brief), citing, Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989) ("when a party moves for summary judgment on ground A, his opponent is not required to respond to ground B -- a ground the movant might have presented but did not").
Although employers are not absolutely liable for workplace sexual harassment, "absence of notice to an employer does not necessarily insulate that employer from liability." Meritor, 477 U.S. at 72. Defendant is liable for Conger's and Gordon's alleged conduct if: (1) defendant "knew, or should have known" of Conger and Gordon's conduct and "failed to take appropriate remedial action;" or, (2) Conger or Gordon were management-level employees who had the authority to hire and fire employees. R.R. Donnelley, 42 F.3d at 446 (because an employer is generally not responsible for the conduct of every low-level employee, the employer is liable only if he knew or should have known about the alleged conduct of a co-worker); Hunter v. Allis-Chalmers Corp., Engine Division, 797 F.2d 1417, 1422 (7th Cir. 1986) ("since the acts of a corporation are acts of human beings, to say that the "corporation" has committed some wrong...simply means that someone at the decision-making level in the corporate hierarchy has committed the wrong; the deliberate act of such a person is the corporation's deliberate act"); Volk v. Coler, 845 F.2d 1422, 1436 (7th Cir. 1988) (employers are "strictly liable for sexual harassment by supervisory personnel who have the power to hire, fire or promote").
Defendant argues that plaintiff never complained to "management" about Conger's actions, and that Siron was never aware of any sexual harassment complaints from plaintiff or any other employee during plaintiff's employment. Plaintiff asserts that Conger's conduct was "well known" throughout Uncle Julio's. It is uncontested that plaintiff was never told whether defendant had sexual harassment policies, nor was plaintiff informed of any grievance procedures or policies for reporting employee complaints. At some point when sexual harassment is open and repetitive an employer is presumed to have been aware of a hostile work environment. See, R.R. Donnelley, 42 F.3d at 447 ("it is possible for sexual harassment to reach a level at which it can be presumed that the supervisor must have been aware that a hostile working environment existed").
Waitress A and Waitress C testified that Conger made the same type of sexually related comments to them and that they had seen Conger making the same type of sexual comments to others. One of defendant's regular customers witnessed Conger making vulgar comments to plaintiff. These facts alone raise a genuine issue as to whether the conduct was sufficiently open and notorious that defendant would be presumed to have notice of the alleged conduct. Further, Waitress C testified that while she never made a formal complaint, she thinks that she told one of the floor managers about Conger's comments and was told "yeah, that's Todd," or "well," or "just deal [with it]."
Defendant argues that Siron was unaware of Conger's actions. Even if Siron, defendant's General Manager, was unaware of Conger's conduct, defendant is liable for Conger's actions if any "management-level" employees knew or should have known of Conger's conduct and failed to take appropriate remedial action. R.R. Donnelley, 42 F.3d at 446. Further, while Siron stated that she was not aware of any official sexual harassment complaints, it is not clear whether Siron was aware of Conger's behavior or whether other managers were aware of Conger's behavior. Viewing the evidence in a light most favorable to plaintiff, the court finds that there is a genuine issue of fact whether any of defendant's "management-level " employees knew of Conger's conduct, and whether defendant took any remedial action to discontinue the alleged harassment.
There is also insufficient evidence in the record to indicate whether Conger is a management-level employee.
If Conger is considered "management level," defendant is directly liable for his actions regardless of any notice to other managers. In her deposition, Waitress C testified that Conger had the power to hire and fire waitstaff and barstaff at the restaurant. Even in light of this testimony, it is unclear whether Conger had the actual authority to hire and fire plaintiff.
Accordingly, in addition to the fact that this issue was not properly raised, the court denies defendant's motion for summary judgment on the question of lack of notice of the alleged harassing behavior because there are genuine issues of fact whether defendant had sufficient notice and whether Conger was a management level employee.
Quid Pro Quo Sexual Harassment
Defendant argues that plaintiff has failed to establish a prima facie case of quid pro quo sexual harassment because Conger never threatened to terminate plaintiff if she did not have sex with him, nor is there evidence that Conger or Gordon linked any economic benefits to her participation in sexual conduct. Equal Employment Opportunity Commission regulation 29 C.F.R. § 1604.11(a) provides:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual...
Relying in part on this regulation, other courts have held that a plaintiff is not required to show an actual understanding that job benefits are linked to the plaintiff's submission to sexual advances. The plaintiff must show, however, that "the employer has in fact used the employee's reaction to the harassment as the basis for a decision concerning a tangible aspect of the plaintiff employee's terms, conditions or privileges of employment." Huitt v. Market Street Hotel Corp., 1993 WL 245744 *3, 62 Fair Empl. Prac. Cas. (BNA) 538, 541 (D.Kan. 1993), citing Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982).
Analogous to the instant case, in Huitt, the plaintiff was not fired by her alleged harasser. The court held that the plaintiff need not establish that the harasser actually carried out the adverse employment action, only that the alleged harasser influenced the party that made the decision. Id, *4 ("a causal nexus may still be inferred if the harasser participates in making the decision to take such action"). The court finds the analysis in Huitt persuasive.
Noting the holding in Huitt, defendant argues that plaintiff fails to establish a causal nexus between Conger's alleged harassment and defendant's decision to terminate plaintiff. Defendant relies on Siron and Moomau's affidavits that the two of them met alone, discussed the evidence surrounding the January 22 Incident, and made the decision to terminate plaintiff and demote Jeff. The court notes that defendant fails to address the evidence Siron and Moomau relied upon in determining whether plaintiff was guilty of the January 22 Incident. In her affidavit, Siron states that prior to discussing the January 22 Incident with Moomau, Conger had told Siron that his brother Jeff had "taken the blame" for plaintiff, and that it was plaintiff who had in fact ordered the Tacos. Siron and Moomau met with Jeff and questioned him again about the January 22 Incident after having been told by Conger and Leman
that plaintiff, not Jeff, had ordered the Tacos. It was during this discussion that Jeff told Siron and Moomau a new version of the January 22 Incident, different from the one he originally told Moomau on January 22.
Based on this evidence, giving plaintiff the benefit of all reasonable inferences, the court finds that there is a genuine issue of fact whether Conger's statement to Siron accusing plaintiff of the January 22 Incident influenced Siron and Moomau's decision to fire plaintiff. The court finds that plaintiff has established enough evidence of a causal connection between Conger's accusations against plaintiff and her ultimate termination to raise a genuine issue of fact whether plaintiff sufficiently states a quid pro quo sexual harassment claim.
Even if plaintiff states a quid pro quo sexual harassment claim, defendant argues that plaintiff's claim fails as a matter of law because plaintiff fails to produce sufficient evidence that defendant's stated legitimate, non-discriminatory reason for plaintiff's termination is pretextual. Once plaintiff establishes a prima facie case of sexual harassment, the burden shifts to defendant to articulate a legitimate, non-discriminatory reason for the challenged employment decision. St. Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993).
After defendant articulates a legitimate, nondiscriminatory reason for having fired plaintiff, the burden then shifts back to plaintiff to establish that defendant's articulated reason is pretextual for unlawful discrimination. If plaintiff produces evidence that the decision to terminate her was influenced by her reaction to Conger's alleged harassment and that defendant's proffered reason is false, then the court may infer the ultimate fact of intentional discrimination. Hicks, 113 S. Ct. at 2749, ("the factfinder's disbelief of the reasons put forward by the defendant. . . may, together with the elements of the prima facie case, suffice to show intentional discrimination").
To meet her burden under Rule 56 plaintiff "must produce specific facts that cast doubt upon [defendant's] stated reasons for its action or raise significant issues of credibility." Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th Cir. 1994). Plaintiff asserts that: (1) she did not order or eat the Tacos found during the January 22 Incident; (2) Jeff, having admitted ordering and eating food that day, was originally only demoted and was not fired until March 1, 1994, over a month after plaintiff filed her discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on January 26, 1994; and, (3) there is evidence that other employees who ordered and ate food in violation of defendant's rules were not fired, and there is no evidence that anyone was fired for having violated defendant's food rules prior to plaintiff's termination.
In addition to plaintiff's own denial that she did not order or eat the Tacos Marcellino, the cook involved in the January 22 Incident, stated that Jeff had ordered and received the Tacos and never alleged that plaintiff was involved. Waitress C testified that she had never heard of any of defendant's employees being fired for violating defendant's employee food rules prior to plaintiff's termination. Further, there is no evidence in the record that any employee was fired for having violated the rules at issue prior to plaintiff's termination.
In response to plaintiff's arguments defendant asserts that the only relevant issue is defendant's good faith belief that plaintiff was guilty of the January 22 Incident. Defendant argues that based on Conger's, Leman's, and Jeff's statements, Siron and Moomau could have reasonably believed that plaintiff had taken the food and lied to Moomau. It is not this court's job to weigh Moomau's and Siron's credibility. The court must determine whether plaintiff has offered sufficient facts and evidence to cast doubt on defendant's proffered reason for her termination.
The court finds that plaintiff's corroborated evidence that past employees had broken the same rules and the lack of evidence that any employee was previously fired for that infraction, along with the evidence that Jeff was not fired until after plaintiff filed her EEOC discrimination claim,
taken in a light most favorable to plaintiff, casts sufficient doubt on defendant's proffered reason to deny defendant's motion for summary judgment on plaintiff's quid pro quo sexual harassment claim at this time. Rand, 42 F.3d at 1146-1147 ("where an employee presents testimony purporting to show that an employer's stated reasons for its action are unworthy of credence, 'the district court must still make a judgment as to whether the evidence, interpreted favorably to the plaintiff, could persuade a reasonable jury that the employer had discriminated against the plaintiff'").
For the reasons stated above, the court finds that plaintiff states a cause of action both for hostile environment and quid pro quo sexual harassment. Further, the court finds that plaintiff has produced enough evidence to raise genuine issues of fact barring defendant's motion for summary judgment as a matter of law. Accordingly, the court denies defendant's motion.
ENTER: August 9, 1995
Robert W. Gettleman
United States District Judge