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KOERBER v. JOURNEY'S END

March 31, 2004.

KARENA KOERBER, Plaintiff,
v.
JOURNEY'S END, INC., an Illinois corporation, d/b/a/ The Annex Lounge, Inc., Defendant



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

OPINION AND ORDER

Plaintiff, Karen A. Koerber, filed suit against Defendant, Journey's End, Inc., for violations of Title VII of the Civil Rights Act of 1 964, 42 U.S.C § 2000e, et seq. Plaintiff alleges that she was sexually harassed by an employee of Defendant, thus causing her place of employment to be a hostile work environment. Trial was by the Court without a jury on October 28, 29, and 30, 2003, and on November 6, 2003.

The Court has considered the evidence, including the testimony of witnesses and exhibits, and has further considered the written arguments of counsel for the parties and the authority cited therein.

  Pursuant to Federal Rule of Civil Procedure 52, the Court hereby enters the following Findings of Fact and Conclusions of Law which are based upon consideration of all the admissible evidence as well as the Court's determination of the credibility of the trial witnesses. To the extent that Findings of Fact, as stated, maybe considered Conclusions of Law, they shall be deemed Conclusions of Law. Similarly, to the extent that matters expressed as Conclusions of Page 2 Law may be considered Findings of Fact, they shall also be deemed Findings of Fact.

  FINDINGS OF FACT

  Defendant is the owner and operator of a restaurant and a bar, the Annex Lounge (the "Annex"), in Mundelein, Illinois, and is an employer, as defined by 42 U.S.C. § 2000, et seq. Defendant has more than 14 and fewer than 101 employees. Defendant is owned and operated by George Orfanos, Greg DiPiero, and Donna DiPiero (collectively, "the owners"). Plaintiff is a female who was hired by Defendant to work at the Annex as a waitress in August 1993.

  Plaintiff was interviewed and hired by Ernie Young, who was and remained Plaintiffs direct supervisor throughout her employment for Defendant. Young was the bar manager at the Annex. He reported to the owners and had supervision over the bartenders and the waitresses at the Annex. Plaintiff did not meet any of the owners on the day she was hired, and Plaintiff did not meet any of the owners until approximately one year after she was hired.

  At the time Plaintiff was hired, Young did not inform her of any policy against sexual harassment, nor did he explain to Plaintiff what sexual harassment was. Moreover, neither Plaintiff nor any other employee received a memo, letter, or any other written correspondence discussing Defendant's so-called "open-door" policy to report problems, including sexual harassment problems, when they began working for Defendant. Young also failed to discuss this open-door policy with Plaintiff, and no training about sexual harassment was ever provided to Plaintiff or any other employee. Furthermore, the open-door policy was not posted or placed in writing for the employees.

  When Young hired Plaintiff as a waitress, he needed someone to begin working immediately. However, Plaintiff had a health condition that required her to take time off for Page 3 medical procedures. Young had the power to schedule shifts; and he and Plaintiff reached an agreement that Plaintiff would start immediately, and Young would not penalize her when she was absent for medical reasons. It would have been difficult, because of pain, for Plaintiff to work full time at the Annex with her injuries; and Plaintiff felt that she could not get a job anywhere else with the flexible hours available at the Annex and required by her medical condition.

  In April 1994, Jennifer Denney, another waitress at the Annex, filed a charge of sexual harassment with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission (the "EEOC") against Defendant based on Young's conduct toward Denney. Young admitted to Greg DiPiero that he had touched Denney's breast behind a closed door to his office. Defendant settled this claim with Denney for $20,000.

  Young was required to pay the settlement amount back to Defendant, even though he was only making about $30,000 per year working at the Annex, In addition to paying the $20,000 back to Defendant, Young was required to sign a "Last-Chance" Agreement. This Agreement provided that the owners and management of Defendant do not condone the harassment of any patron or employee and that any such activity would result in Young's immediate termination.

  Young signed the Agreement on April 20, 1994. The owners also gave Young a verbal warning and told Young that his harassing conduct was unacceptable, and he would not work at the Annex if the conduct occurred again.

  Young's harassment of Plaintiff began as early as August 1993, when he grabbed Plaintiffs buttocks. Thereafter, despite signing the Denney Last-Chance Agreement, Young's harassing conduct toward Plaintiff continued. Young made comments of a sexual nature to Page 4 Plaintiff. Young engaged in conduct of a sexual nature towards Plaintiff, including brushing his hands across Plaintiffs breasts and patting Plaintiffs buttocks. Young made a comment to Plaintiff about the size of his penis and pointed to his genital area in Plaintiffs presence. Young kissed Plaintiff. Young also made comments about Plaintiffs breasts, how he would like to see them, and he offered Plaintiff money to see her breasts. Sometimes, these comments were made when customers were present in the Annex,

  Young admitted to some of his harassing conduct. When he met with some of the owners of the Annex after Denney filed her charge in 1994, Young admitted that he patted Plaintiffs buttocks, brushed against her breasts, and kissed Plaintiff. He further admitted that he discussed his penis with Plaintiff and called her "a bitch." Young also admitted to brushing up against Plaintiff even though she asked Young to stop.

  After Denney filed her claim, Plaintiff met with Denney's attorney to determine whether Plaintiff could file a charge of harassment. However, Plaintiff did not file a charge at that time because she could not afford to lose her job at the Annex.

  Because of Young's harassing conduct, Plaintiff quit her job at the Annex on May 23, 1995. However, Plaintiff went back to work in June 1995 after meeting with the owners to discuss Young's harassing conduct.

  After Plaintiff came back to work at the Annex, Young's harassing conduct continued throughout Plaintiffs employment. Young made sexually explicit remarks to Plaintiff as well. He told Plaintiff that he masturbated while thinking of Plaintiff. On Sundays, when the Annex was slow, Young offered Plaintiff one-hundred dollars in exchange for oral sex; Plaintiff emphatically rejected these propositions. Young made comments about the size of Plaintiff s Page 5 breasts, and he talked about his penis in front of Plaintiff. One time, Young asked Plaintiff and another female employee at the Annex, Irish Sloan, to compare breasts. Young also discussed Plaintiffs buttocks and his attraction to Plaintiff.

  On or around August 21, 1996, Plaintiff was forced to use the men's restroom at the Annex because of a problem with the women's restroom. Plaintiff placed Matt Lagoni in front of the men's restroom to guard the door. However, Plaintiff heard a commotion; and Young walked into the men's restroom. Young started yelling and simulating an orgasm. Young further stated that he always wanted to be in the same room as Plaintiff when her pants were down. Plaintiff was in a toilet stall and yelled at Young and told him to get out.

  Between August 1996 and January 1997, Young, on several occasions, brushed his hands across Plaintiffs breasts and pretended it was an accident. He would then comment and say, "Oh, sorry. If your breasts weren't so big, then it wouldn't be a problem," or something to that affect. During this time period, Young also came up behind Plaintiff and pretend to bear hug her. As Young would release his hands, he would touch her breasts. Plaintiff was offended by Young's acts and told him to "knock it off' or words to this effect. These incidents occurred when other people were in the bar.

  Young also attempted to touch Plaintiff in other ways between August 1996 and January 1997. Young repeatedly pretended that he needed to speak with Plaintiff about something, lean in towards her, and then place his hand on Plaintiffs buttocks. Sometimes he did this act in the view of customers. Sometimes, Young grabbed Plaintiff and trirf to kiss her when her arms were locked down. On several occasions, Young squeezed Plaintiffs face and cheeks and kissed Plaintiff. Young made sexually lewd comments to Plaintiff during this time period, as well. Page 6

  When Plaintiff needed a new work T-shirt, Young offered to give her a free one if she would undress in front of him.

  Plaintiff was not receptive to these actions by Young throughout her employment at the Annex. Sometimes, Plaintiff told Young to knock it offer called him a pig. Other times, Plaintiff told Young to "go to hell" or asked him to leave her alone. Sometimes, Plaintiff slapped Young because of his offensive conduct.

  Plaintiff became angry and embarrassed because of Young's conduct. Young's comments about Plaintiffs breasts caused her low self-esteem, and she contemplated breast reduction surgery. When Young touched Plaintiffs breasts, she felt violated, degraded, and humiliated.

  On or around January 24, 1997, just two days before Super Bowl Sunday, Plaintiff quit her job at the Annex. Super Bowl Sunday was one of the most lucrative days for tips for the waitresses at the Annex. Plaintiff was originally scheduled to work on Super Bowl Sunday, January 26, 1997; but Young cancelled her shift that day. On the Thursday before Super Bowl Sunday, Plaintiff called Young at 5:30 p.m. to cancel her shift that day because she was sick; Plaintiffs shift started at 6:00 p.m. Plaintiffs cancellation required Young to call other staff members and see if they could work for Plaintiff with very little prior notice. Plaintiffs conduct inconvenienced the Annex staff, and Young cancelled Plaintiffs Super Bowl shift as a result.

  Defendant, in spite of Young's previous actions towards Denney, did not adopt a formal plan to stop sexual harassment at the Annex. Defendant did place an Equal Employment Opportunity poster in the bar by the ice cooler. This poster remained on the wall throughout the entire time Plaintiff worked at the Annex. However, the poster did not contain any specific notices about an employee's rights concerning sexual harassment. Rather, the poster only Page 7 contained general ...


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