United States District Court, N.D. Illinois
January 29, 2004.
KATHLEEN N. LOUGHMAN, Plaintiff,
MALNATI ORGANIZATION, INC., d/b/a LOU MALNATI'S PIZZERIA, Defendant
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, Kathleen Loughman (hereinafter "Loughman"), has
brought this suit against her former employer, Lou Malnati's Pizzeria
(hereinafter, "Malnati's"), alleging that she was the subject of sexual
harassment by co-employees. Specifically she complains about three
incidents that occurred between November 2000 and August 2002.
The first alleged incident occurred in November 2000, when a
co-employee, Martin Ruellas, put his arm around her, pushed her into a
darkened room, and tried to kiss her. She escaped from his grasp but. was
again stopped by Ruellas who pushed her against a wall. He continued to
grab and hold her as she tried to escape by running up a set of stairs.
The second alleged incident occurred in the fall of 2001 when
co-employees, Guillermo Siffuentes and Hector Hernandez,
followed her into the cooler. The lights were turned off, Hernandez
grabbed her breasts and tried to put a hand down her pants. She screamed
for help, tried to push Hernandez off and hit Siffuentes, causing him to
fall against the door, which opened allowing her to escape.
The third alleged incident occurred on August 28, 2002, when a delivery
boy, Tom Schaller, approached her from the rear, ran his hands through
her hair, and put a hand up her shirt and wiggled his fingers on her
stomach. He then giggled and ran away.
Plaintiff contends that she complained to her supervisor, Jim Solis
("Solis"), about all three incidents but he did not conduct an
investigation, refused to discipline the offending co-workers or change
their shifts so she would not have to work with those who sexually
harassed her, and otherwise did, nothing to remedy her complaints.
Malnati's, on the other hand contends that at all times it had in place
a sexual harassment policy that was publicized in the employees'
handbook, a copy of which plaintiff received at the time of her first
employment with Malnati's. Under Malnati's policy an employee has the
option of reporting harassment to the corporate office via a telephone
number provided in the handbook, or directly to any of three female
managers. Plaintiff, however, chose to report the acts of harassment to
Jim Solis who was a
male and one of the most junior managers. Malnati's further claims
that: on the three specific occasions cited by plaintiff, Solis did in
fact conduct an investigation and verbally warned the offending employees
that if they did anything further to plaintiff they would be fired.
Ruellas did not bother her again, Hector Hernandez, was fired as a result
of additional harassing conduct toward plaintiff, and Schaller was
transferred to another restaurant. Thus, Malnati's contends that it is
entitled to the affirmative defense provided by the cases of
Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Plaintiff fails to discuss the impact of Ellerth and
Faragher on her case, but does allege in her brief that
Malnati'a ignored her complaints, failed to conduct investigations, and
refused to discipline the offending employees. However, in her
deposition, which is an exhibit, she testified to the contrary: that
after she complained to Solis and other co-employees regarding each of
the three incidents the offending people were talked to and, with one
exception did not bother her again. She specifically testified in her
deposition that Martin Ruellas was talked to by Solis and threatened with
termination. She did not have any trouble with him again. In fact, she
said that Ruellas did not speak to her for at least a year after the
incident. After she complained about the incident with Hernandez and
Siffuentes, Solis talked to Hernandez, While Hernandez did not. do
anything as drastic as in the 2001 incident, he did on another occasion
brush up against her which made her feel uncomfortable. She again
complained and Solis subsequently fired him as a result of this behavior.
Schaller, the harasser in 2002, was called into a meeting with Solis and
Loughman where he was required to apologize and shortly thereafter he was
transferred to a different store.
In Ellerth and Faragher the Supreme Court held that
employers may defend against claims of sexual harassment by co-workers
(as opposed to supervisory personnel) by exercising reasonable care to
discover and rectify promptly sexual harassing behavior. Durkin v.
City of Chicago, 341 F.3d 606, 612 (7th Cir. 2003). If the employer
has an effective grievance mechanism to seek redress for harassment, the
employer will not be considered negligent and will have no liability.
Gentry v. Export Packaging Co., 238 F.3d 842, 847 (7th Cir.
1999). In this case the evidence shows that Malnati's had a written sex
harassment policy which instructed employees, such as plaintiff, to
complain to their supervisor, or, if desired, to the corporate office.
The evidence further showy that plaintiff did not call the corporate
office or any of the female supervisors and was apparently somewhat
reluctant to complain, but elected to complain first Lo fellow employees
and only later to a supervisor, Solis. In at
least two of the three occasions the supervisor Solis first heard
about her claims of harassment from the co-employees to whom she
complained. In each of the three incidents, her supervisor conducted an
investigation of the incident by speaking to the offending employee. In
one instance after the employee was threatened with being fired if the
conduct occurred again (Ruellas), he did not bother her again. In fact,
plaintiff testified that it was about one year later before Ruellas would
even speak to her at all. The second incident lead to the firing of
Hernandez because he repeated the harassing behavior, and the third
incident (Schaller) led to an apology and his transfer to another
Malnati's store. Thus, it is apparent that Malnati's not only had a
sexual harassment policy in place but had an effective one. This is all
that is required to avoid liability for co-employee harassment. See
Plaintiff also complained about a variety of off hand comments that
were made to her and in her presence during her employment, such as "do
you have a boy friend?", "will you date me?" and the like, which she
claims made her feel uneasy. The evidence does not disclose that she
complained to her supervisor about any specific incident other than the
three discussed above. The evidence does show that her supervisor did
advise her that many of her co-employees were of Hispanic background and
were products of a different culture and she should avoid taking any
actions that might tend to mislead them such as flirting or
loitering in the kitchen where many of them worked. While this advice
does smack a little of "blame the victim," nevertheless the comments were
not such as to constitute illegal harassment. Scott v. Sears, Roebuck
& Co., 798 F.2d 210, 211-214 (7th Cir. 1986); Weiss v.
Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993).
For the reasons stated above, the Motion for Summary Judgment of the
Defendant is granted.
IT IS SO ORDERED.
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