MEMORANDUM OPINION AND ORDER
Paul Turner ("Turner") has brought a seven-count Complaint against his ex-employer The Saloon, Ltd. ("Saloon") and certain owners and members of management, alleging (1) that he was discriminated and retaliated against because of a skin condition in violation of the Americans with Disabilities Act ("ADA," 42 U.S.C. §§12101-12117) and (2) that he was harassed and discriminated against based on his sex in violation of Title VII of the Civil Rights Act of 1991 ("Title VII," 42 U.S.C. §§2000e to 2000e-17). Turner further claims that Saloon violated the Fair Labor Standards Act ("FLSA," 29 U.S.C. §203) and the Illinois Wage Payment Act (those claims are collectively referred to here as "Wage Claims").
Saloon has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56 on all of Turner's claims, and Turner has in turn moved for a ruling as a matter of law to preclude Saloon from asserting affirmative defenses on the sexual harassment count. For the reasons stated in this memorandum opinion and order, Saloon's motion is granted as to all claims other than the Wage Claims, while Turner's motion is denied as moot. This Court anticipates dealing with the Wage Claims shortly.
Summary Judgment Standard
Well-established Rule 56 principles impose on parties wishing to prevail on summary judgment the burden of establishing a lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose this Court must consider the evidentiary record in the light most favorable to Turner and draw all reasonable inferences in his favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment, Turner must produce "more than a mere scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). If the record were to reveal that no reasonable jury could find in favor of Turner, summary judgment will be granted (see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
To evaluate that possibility, what follows is a summary of the facts, viewed of course in the light most favorable to Turner under the criteria prescribed by Rule 56 and this District Court's LR 56.1.*fn2 And that obviates the need, in the evidentiary recital, to repeat "according to Turner" or the like or to identify any conflicting account, though the latter is sometimes included for purely informational purposes.
From 1999 until his termination in December 2004, Turner worked as a waiter at Saloon, a Chicago restaurant specializing in steaks (T. St. ¶¶1-2). Turner consistently earned more money in tips than any other waiter, due in part to his skillful presentation of Saloon's steak cuts, which many patrons enjoyed so much they specifically asked for Turner to serve them (id. ¶3).
Saloon's managerial staff comprised several persons. William Bronner ("Bronner") is the Owners' Representative who created and developed operating procedures and reported directly to Saloon's owners (T. St. ¶9). Mark Braver ("Braver"), who reports to Bronner, has been the general manager of Saloon since April 2002 and has been directly responsible for all of Saloon's day-to-day business activities (S. St. ¶5). Supervisors who report to Braver include Denise "Dixie" Lake ("Lake") and Brett Dresnick ("Dresnick")(S. St. ¶5). Turner reported to Braver, Dresnick and Lake (T. St. ¶10; Br. Dep. 48).
In 1995 Turner was diagnosed with psoriasis, a skin condition that mostly affects his genital area, elbows and knees (T. Dep. 179-81). Due to his skin condition Turner cannot wear underwear because it causes him to sweat in his groin area, which in turn irritates the region affected by psoriasis (S. St. ¶28). Braver knew about Turner's skin condition and the fact that it made Turner uncomfortable (id. ¶29). Despite his psoriasis Turner could still ride in a car and ride a bike, and walking was "usually fine" as long as he avoided wearing too many layers of clothing (T. Dep. 186). Psoriasis did not preclude Turner from playing softball during the summers of 2003 and 2004 (id. 79), and his psoriasis does not currently impact Turner in his new job as a server at Morton's Steakhouse (id. 188).
Turner's habit of eschewing undergarments because of his psoriasis eventually became an issue at Saloon, because when he would change into his work clothes on the premises he exposed himself to other members of the wait staff (S. St. ¶33). When a female server complained to Braver about encountering Turner naked in the common employee area, Braver instituted a new policy: Employees were not to expose themselves in any of the common areas, and if they were going to be naked they would have to change clothes in the employee washrooms (id. ¶¶34-35).
After the new policy was instituted, Turner told Braver that he did not want to change in the men's washroom because it was too dirty (S. St. ¶36). Turner proposed that Braver install a curtain around a portion of the common area where he could undress (id.). Braver and Bronner discussed Turner's proposal but determined that a curtain would not assure sufficient privacy, so they told Turner that he could either wear his work pants to the premises or change in the private washroom of the adjacent Seneca Hotel (id. ¶¶37-38). Turner rejected those alternatives and asked if he could change in Saloon's storage basement, but Braver rejected that alternative because there was no door to the basement area and privacy could not be assured (S. St. ¶39).
Following the discussion about the storage basement, Braver found Turner standing in the basement with his genitals exposed, so he issued a written warning to Turner and suspended him for one week for violating Saloon policy (S. St. ¶40). On October 4, 2004 Turner filed a Charge of Discrimination with the Illinois Department of Human Rights (id. ¶41), alleging that Saloon discriminated against him because of his psoriasis in violation of the ADA.
Additionally, for nine months during 2002 Turner and Lake engaged in a secret consensual sexual relationship that ended in November of that year (T. St. ¶13). Based on interactions between Lake and Turner after their affair ended, Turner claims that Lake sexually harassed him on the job (id.). Turner believes that he experienced increased rage from Lake, suffered oral reprimands in the presence of the rest of the staff, was assigned to less profitable tables and endured Lake's offensive touching and comments (id. ¶14). According to Turner, Lake's harassment continued from the end of their affair in 2002 until his termination in 2004 (id. ¶15). Not surprisingly, Lake denies that she treated Turner any differently from other members of the wait staff and denies that she touched him or spoke to him inappropriately (L. Dep. 47, 56-63).
Though Lake denies the matters set out in this paragraph (L. Dep. 63), Turner says (and this opinion credits his version) that Lake told him not to report any incidents between himself and Lake to Saloon management because they would both lose their jobs (T. St. ¶17). Those incidents persisted throughout 2003 and 2004, including on Father's Day 2003 when a customer spilled champagne on Turner's pants and Lake followed him to the bar area, put her hands in his pants and touched him inappropriately (id. ¶19). On New Year's Eve 2003 Lake tried to kiss Turner, but when he refused Lake told him he was "crazy" (id. ¶21). In August 2004 Turner was in the employee area changing into his uniform for his shift, and Lake watched him change and commented that she "missed seeing [Turner]" without clothing (id. ¶23). Throughout 2004 Turner was unfairly disciplined by Lake, while also enduring her inappropriate touching and comments (id. ¶24).
Turner knew that Lake's conduct was unlawful as soon as it started, as his deposition testimony demonstrates (T. Dep. 132):
Q: Did you know that it was---- inappropriate at the time she started doing this?
In July 2003 Turner brought his complaint to Braver, who in turn offered to initiate a formal investigation and to let Bronner know (T. St. ¶27). During that conversation Turner got the impression that Braver thought it would be best to hold off before taking the issue to Bronner, but Braver agreed that if the situation got worse he would call a meeting with Bronner (T. Dep. 138). Turner was afraid to pursue his allegations because he was afraid he would lose his job. (id. 138-39). Turner also said that Braver "ma[d]e fun of" the allegations when Turner next mentioned an incident to Braver (id. 148).
Braver recalled that Turner asked him not to launch a formal investigation and said that "[u]nder normal circumstances, I would have immediately begun a formal investigation. But because [Turner] begged me not to look into it--he just wanted it to stop without me talking to anyone" (B. Dep. 124-25). Based on Turner's request that Braver not investigate the allegations formally, Braver looked at the disciplinary actions that Turner had received from Lake and determined that he did not think she had disciplined him "any more harshly than any other managers for similar things for any other employees"(id. 125).
In the spring of 2004 Turner agreed that Bronner should be told about the situation between himself and Lake (T. Dep. 101). During a meeting with Bronner and Braver, Turner suggested that he would be more comfortable if someone other than Lake were his supervisor, but Bronner informed him that was impossible (Br.
Dep. 80). Turner read from prepared notes during that meeting, but he later destroyed them (T. Dep. 152-53). Bronner testified that Turner complained of having to endure Lake's unfair treatment and unsolicited touching (Br. Dep. 64).
Bronner began to investigate Turner's allegations by speaking with Lake and other employees (Br. Dep. 54-55). Bronner met with Lake and told her that she was not to touch Turner physically and that sexual harassment was against the law and would not be tolerated (id. 144-45). In a later meeting among Bronner, Turner and Lake, Lake denied all the allegations, and Bronner told them both that he would continue to monitor the situation and that he hoped they could work together (id. 66). At no time, however, did Bronner draw a conclusion about whether Lake sexually harassed Turner (id. 67). Neither Bronner nor Braver disciplined Lake in connection with ...