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Fenton v. Portillo's Hot Dogs

November 13, 2008


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Plaintiff Jazmine Fenton (hereinafter, "Fenton") brings this action against Defendant Portillo's Hot Dogs, Inc. (hereinafter, "Portillo's") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. In her Complaint, Fenton seeks to hold Portillo's liable for harassment and constructive discharge, in violation of 42 U.S.C. 2000e et seq., alleging that she reported sexual harassment by her supervisor, and Portillo's failed respond promptly and appropriately. Compl. ¶ 4. For the following reasons, Portillo's Motion for Summary Judgment is GRANTED.


A. Fenton's Employment at Portillo's

Portillo's operates restaurants in the Chicago area. Def.'s Statement of Facts ("Def.'s SOF") ¶ 2. From May 22, 2006 to September 11, 2006 (hereinafter, all dates are 2006), Fenton was employed by Portillo's as a part time crew member at the Crestwood location. Id. at ¶¶ 13-14. Fenton's supervisors included co-managers Dominique Rutledge ("Rutledge") and Terance Murphy ("Murphy"). Id. at ¶ 15. During this time, Fenton was sixteen years old and a high school student. Pl.'s Statement of Facts ("Pl.'s SOF") ¶ 1.

Fenton alleges that, during her employment at Portillo's, Murphy repeatedly sexually harassed her, including, but not limited to engaging in the following incidents, which are undisputed by Portillo's for purposes of summary judgment. Def.'s LR56.1 Statement Ex. ("Def.'s Ex.") I. On multiple occasions, Murphy brushed his private parts against Fenton's rear. One time, he touched her lips, asked for a kiss, and told her that she was "sexy." On or about July 15, 2006, Murphy reached into Fenton's pocket and rubbed the top of her vagina through her clothes for five to ten seconds.

B. Portillo's Policies and Training Regarding Harassment

Portillo's written policy on sexual harassment, included in the Employee Start-Up Guide given to each new employee, defines sexual harassment, lists examples of prohibited conduct, and provides a variety of reporting options. Def.'s Supp. Ex. 2. at 15-16. The Guide instructs an employee who feels like he or she has been subjected to unlawful discrimination to "contact [the employee's] General Manager, Area Supervisor, or the Human Resources Department," and it states that Portillo's will "not retaliate against [the employee] for filing a complaint." Id. The Guide also includes the phone number of a direct line to the corporate office, which employees are instructed to use if they have questions about company policies or about harassment. Id. at 10.

Portillo's employees are required to participate in an orientation, in which a supervisor discusses the sexual harassment policy, and to acknowledge receipt and understanding of the policy. Def.'s SOF ¶¶ 3-5. Managers are given additional training regarding the prevention and correction of harassment. Id. at ¶¶ 7-10. When an employee reports harassment, company policy advises that a human resources representative or store manager take a written statement, investigate the allegations, determine whether the complaint has merit, and consider appropriate corrective action. Id. at ¶¶ 11-12. At the time of her hire, Fenton received a copy of the Employee Start-Up Guide, participated in the orientation, and acknowledged her understanding of the policy. Id. at ¶¶ 16-18; Def.'s Ex. H.

C. Fenton's Complaints and Portillo's Investigation

On August 24, about six weeks after the incident in which Murphy put his hand in her pocket, Fenton reported most of Murphy's misconduct to Rutledge. Def.'s SOF ¶¶ 21-23. Fenton explains that she did not report the incidents immediately because she was intimidated by Murphy, who is over six feet tall and weighs about 300 pounds. Fenton Dep. at 40-51; Pl.'s SOF ¶¶ 8-9. After listening to her allegations, Rutledge requested that Fenton bring her parents to work the next day to meet with him, and he called his supervisor as well as Portillo's Director of Training and Human Resources, Sharon Maloney ("Maloney") to inform both individuals about his discussion with Fenton. Def.'s SOF at ¶¶ 24-27.

On August 25, Rutledge, Fenton, and Fenton's parents met and discussed Fenton's allegations. Id. at ¶¶ 28-34. At Rutledge's request, Fenton listed and described the incidents on an Employee Reporting Form. Id.; Def.'s Ex. I. On this Form, Fenton listed the incidents she described to Rutledge the day earlier as well as the incident in which Murphy put his hand in her pocket. Id. During their discussion, Rutledge assured Fenton and her parents that he would investigate the allegations. Def.'s SOF ¶ 34.

After the meeting with Fenton and before her next shift, Rutledge changed Fenton's work area so that she would have little or no contact with Murphy. Id. at ¶¶ 35-38. For the rest of Fenton's tenure at Portillo's, Fenton and Murphy were assigned to different zones of the restaurant and did not work directly with one another. Id. The two came into incidental contact a few times per week, however, and Fenton claims that Murphy continued to bump into her shoulder in a crowd of employees and "frown" at her. Id.; Fenton Dep. at 97-106. Fenton also alleges that Murphy effectively reduced her biweekly hours from 66 hours to 56 hours. Fenton Dep. at 97-106; Pl.'s SOF ¶ 23.

After the meeting on August 25, Rutledge called Maloney and faxed her Fenton's written statement. Def.'s SOF ¶¶ 39-40. The next day, Rutledge interviewed and took statements from three other female employees with whom Fenton had discussed Murphy's conduct. Id. at ¶¶ 41-44. None of these employees had seen or heard Murphy sexually harass Fenton, but each claimed that Murphy behaved inappropriately toward herself. Id.; Def.'s Ex. L. The same day, Rutledge informed Murphy of the allegations by all four employees and took a written statement from him. Def.'s SOF ¶¶ ...

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