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Parker v. Side by Side, Inc.

United States District Court, N.D. Illinois, Eastern Division

June 27, 2014

SIDE BY SIDE, INC., an Illinois corporation d/b/a " Sidetrack," ARTHUR JOHNSTON, WILLIAM STADT, JAMES KAYS, and DAVID OAKES, Defendants

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For Joseph Parker, Plaintiff: Stephen Falk Boulton, LEAD ATTORNEY, Boulton & Associates, Chicago, IL.

For Side By Side, Inc., an Illinois Corporation doing business as SideTrack, David Oakes, James Kays, William Stadt, Arthur Johnston, Defendants: Alex Breland, Hinshaw & Culbertson LLP, Chicago, IL; Scott M Gilbert, Polsinelli, PC, Chicago, IL.

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AMY J. ST. EVE, U.S. District Court Judge.

Plaintiff Joseph Parker brings this action against his former employer, Defendant Side-by-Side, Inc. d/b/a Sidetrack (" Sidetrack" ), and four former coworkers (the " Individual Defendants" ). Plaintiff asserts claims against Sidetrack for sexual harassment, religious harassment, and retaliation under the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff also asserts a claim for intentional infliction of emotional distress (" IIED" ) against Sidetrack and the Individual Defendants. Before the Court are Defendants' motions for summary judgment. ( See R. 46, 52, 54, 57, 60.)

For the following reasons, the Court grants Sidetrack's motion for summary judgment (R. 46) with respect to Plaintiff's sexual harassment, retaliation, and IIED claims, but denies it with respect to Plaintiff's religious harassment claim. In addition, the Court grants the Individual Defendants' motions for summary judgment on Plaintiff's IIED claims. (R. 52, 54, 57, 60.)


I. Northern District of Illinois Local Rule 56.1

Local Rule 56.1" is designed, in part, to aid the district court, 'which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,' in determining whether a trial is necessary." Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Local Rule 56.1(a)(3)

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requires the moving party to provide " a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). The nonmoving party then must file " a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Id. (citing N.D.Ill. L.R. 56.1(b)(3)(B)). The nonmoving party also must present a separate statement of additional facts, if any, that it contends require the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008) (citing N.D.Ill. L.R. 56.1(b)(3)(C)).

In general, the aim of Local Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (" [S]tatement of material facts did . . . not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture . . . ." ). The rule makes the summary judgment process less burdensome on district courts by requiring the parties to nail down the relevant facts and the way they propose to support or refute them. Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012). " When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion." Cracco, 559 F.3d at 632. In sum, " [f]or litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for summary judgment." Sojka, 686 F.3d at 398.

Here, Plaintiff responded to Sidetrack's and Arthur Johnston's joint Local Rule 56.1(a) statement of material facts, but he did not respond to Defendants William Stadt's, James Kays', or David Oakes' separate Local Rule 56.1(a) statements. Stadt, Kays, and Oakes argue that, as a result, the Court should deem admitted the facts set forth in their Local Rule 56.1(a) statements. ( See R. 78, Indiv. Defs. Reply Br. at 1.) Many of the facts presented in their Local Rule 56.1(a) statements, however, mirror the facts provided in Sidetrack's and Johnston's joint Local Rule 56.1(a) statement. For any overlapping facts, the Court has deemed Plaintiff's responses to Sidetrack's and Johnston's joint Local Rule 56.1(a) statement as responses to Stadt's, Kays', and Oakes' corresponding statements of fact. For the remaining facts, however, the Court has deemed Plaintiff's failure to respond as admissions. See Cracco, 559 F.3d at 632.

Additionally, Plaintiff directed his Local Rule 56.1(b)(3) statement of additional facts to Sidetrack and Johnston, but not to Stadt, Kays, and Oakes. Consequently, Sidetrack and Johnston filed a joint response to those additional facts, but Stadt, Kays, and Oakes did not. The same counsel represents all Defendants, however, and a review of Sidetrack's and Johnston's joint response shows that it fully protects Stadt's, Kays', and Oakes' interests. The Court, therefore, has considered Plaintiff's additional facts, where appropriate, in deciding Stadt's, Kays', and Oakes' motions for summary judgment.

Finally, the Court has not considered statements of fact set forth by either side that fail to comply with Local Rule 56.1, and it has deemed as admitted those statements of fact to which the opposing party failed to properly respond. See Cracco,

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559 F.3d at 632. With these principles in mind, the Court turns to the relevant facts.

II. Relevant Facts

Sidetrack is a bar located in Chicago's Lakeview neighborhood that caters primarily to single gay men. ( See R. 47, Defs. L.R. 56.1 Stmt. ¶ ¶ 3, 6.)[1] Jose " Pepe" Pena and Defendant Arthur Johnston co-own Sidetrack ( id. ¶ 4), and the remaining Individuals Defendants are employees: David Oakes is a bartender; Jimmy Kays is a night manager; and Bill Stadt is Sidetrack's facilities manager. ( Id. ¶ ¶ 13-15.) Plaintiff began working for Sidetrack as part of its security team on August 4, 2010. ( Id. ¶ 9.) Plaintiff's duties included checking patrons' identifications, picking up glassware around the bar, and generally responding to any security issues. ( Id. )

At the beginning of his employment, Plaintiff signed Sidetrack's Anti-Harassment and Nondiscrimination Policy (the " Anti-Harassment Policy" ), which prohibits sexual and discriminatory harassment. (Defs. L.R. 56.1 Stmt. ¶ 11.) The Anti-Harassment Policy sets forth several options an individual may pursue to address offensive behavior, including self-help, mediation, submitting a formal complaint, and seeking reassignment. ( See R. 47-5, Anti-Harassment Policy at 3-5.) The Policy designates Johnston and Sidetrack's attorney, Stephen Herseth, as mediators to assist individuals in handling any issues related to sexual and discriminatory harassment and as the company's contacts should an individual want to submit a formal complaint. ( Id. at 3-4.) Under the Policy, an individual may choose any of the options for addressing harassment outlined in the Policy and may " continue to bring any work-related problem to his or her supervisor" in addition to Johnston, Pena, and Herseth. ( Id. at 3.) Although Plaintiff signed the Anti-Harassment Policy verifying that he read and understood it, Plaintiff states that he felt rushed in his review and did not completely understand the Policy. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 29 (citing 47-6, Pl. Dep. 25:8-28:4).) It is unclear whether Sidetrack gave Plaintiff a copy of the Anti-Harassment Policy for his records. ( Id.; see also R. 79, Defs. L.R. 56.1(b) Resp. ¶ 29.)

On May 18, 2011, Plaintiff's boyfriend at the time, Kevin DuJan, sent a letter to Sidetrack claiming that Sidetrack employees had harassed him on May 5-6, 2011 because he is a Christian and a Republican. (Defs. L.R. 56.1 Stmt. ¶ ¶ 12, 22-26; see also R. 47-4, DuJan Letter at DEF000194.) In his letter, DuJan asserted that Sidetrack employees also had harassed Plaintiff because of DuJan's beliefs and Plaintiff's relationship with him. (Defs. L.R. 56.1 Stmt. ¶ 26.) DuJan claimed that Oakes, in particular, repeatedly harassed Plaintiff about his relationship with DuJan and threatened to have Plaintiff fired if the relationship continued. ( See DuJan Letter at DEF000190-93.) DuJan filed a religious discrimination complaint against Sidetrack with the City of Chicago's Commission on Human Relations on June 2, 2011. ( See R. 48-3.)

Sidetrack hired an attorney, Brett Rappaport, to investigate DuJan's allegations. (Defs. L.R. 56.1 Stmt. ¶ ¶ 21, 27.) Rappaport met with several individuals during his investigation, including Plaintiff. ( Id. ¶ 27.) In advance of his meeting with

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Rappaport, Plaintiff submitted a seven-page personal statement describing several incidents of sexual and religious harassment he purportedly had suffered at the hands of Sidetrack employees. ( Id. ¶ 28.) After receiving Plaintiff's statement, Sidetrack placed him on paid leave purportedly to allow the investigation into DuJan's and Plaintiff's allegations to proceed and to ensure that Plaintiff felt comfortable during the pendency of the investigation. ( Id. ¶ 29.) There is some evidence, however, that Sidetrack placed Plaintiff on leave at least in part because Plaintiff was excessively using his intercom to report his activities and location. ( See Pl. L.R. 56.1(b) Resp. ¶ 29.)

On August 26, 2011, Sidetrack terminated Plaintiff for cause. ( Id. ¶ 49.) According to Sidetrack, it terminated Plaintiff because he refused to meet with Sidetrack's attorney regarding its investigation, was insubordinate, and made false allegations of harassment. ( See id. But see Pl. L.R. 56.1(b) Resp. ¶ 49.) Plaintiff, however, claims that Sidetrack terminated Plaintiff in retaliation for complaining about the harassment he endured. Following his termination, Plaintiff filed a charge with the Equal Employment Opportunity Commission (" EEOC" ) on February 24, 2012. ( See Defs. L.R. 56.1 Stmt. ¶ 50.)

Plaintiff initiated this suit against Sidetrack and the Individual Defendants on September 10, 2012. ( See id.; see also R. 1, Compl.) Plaintiff asserts claims against Sidetrack for sexual harassment, religious harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964. Plaintiff also asserts claims against the Individual Defendants--and Sidetrack as their employer--for IIED. The Court has jurisdiction over Plaintiff's Title VII claims pursuant to 28 U.S.C. § 1331, and it has supplemental jurisdiction over Plaintiff's intentional IIED claims pursuant to 28 U.S.C. § 1367. Venue is proper in this District because the alleged events giving rise to Plaintiff's claims occurred within the Northern District of Illinois. ( See Defs. L.R. 56.1 Stmt. ¶ 2.)

A. Sexual Harassment Allegations

Plaintiff's allegations of sexual harassment primarily concern Defendant Stadt, although he also alleges incidents of sexual harassment involving Defendants Kays and Oakes and two Sidetrack employees who are not defendants.

1. Defendant Stadt[2]

Plaintiff alleges that Stadt first began harassing Plaintiff during his job interview. According to Plaintiff, Stadt stated that he had seen Plaintiff around the area and commented on how much he liked the shirts Plaintiff wore. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 8.) Plaintiff considered the comments to be sexual. ( Id. ) He felt like Stadt was picking him up in a bar rather than interviewing him.[3] ( Id. )

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Stadt continued to harass Plaintiff after Sidetrack hired him. On August 8, 2010, four days after Plaintiff began working at the bar, Stadt and a companion approached Plaintiff during his smoke break and began talking to Plaintiff about Stadt's " playroom," which Plaintiff understood to be a " sex dungeon type scenario." ( Id. ¶ 9; see also Pl. Dep. 243-44.) Stadt and his friend described for Plaintiff the activities that occurred in Stadt's playroom, including sodomy and flagellation, genital torture, insertion of objects into a person's urethra or anal cavity, rolling in feces and urine, partial asphyxiation, group sex, and the use of genital rings. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 9.) Plaintiff felt uncomfortable during the discussion and recalls attempting to change the subject. ( Id.; see also Pl. Dep. at 244-45.) Later that night, Stadt texted Plaintiff, " Thanks for the converaation [sic]. It ended my night well. Look forward to showing u the playroom. Hugs." (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 9.)

Over the next several months, Stadt made lewd comments to Plaintiff and touched him inappropriately on multiple occasions. In August or September 2010, Stadt and his friends, who had come to the bar as patrons, catcalled Plaintiff, whistling and hooting at him and calling him " fresh meat." ( Id. ¶ 10.) Stadt then slapped Plaintiff on the buttocks. ( Id. ) In October 2010, an intoxicated Stadt danced " grindingly" against Plaintiff in an empty barroom, blocking Plaintiff from completing his work. ( Id. ¶ 11.) Stadt asked " Can't you just pretend I'm not your manager?" while dancing provocatively against Plaintiff. ( Id. ) According to Plaintiff, Stadt danced against him this way on several occasions while Plaintiff was working. ( Id. ¶ ¶ 11-12; see also Pl. Dep. at 272.)

In October or November 2010, Stadt approached Plaintiff while he was working near the entrance to Sidetrack and told Plaintiff to turn around and let Stadt see his buttocks. ( Id. ¶ 12.) Later that same night, Stadt told Plaintiff to follow him into the courtyard, and after determining that no one was watching from the bar, grabbed Plaintiff's buttocks and commented that Plaintiff's " ass feels really great in those jeans." ( Id. ) Stadt then rubbed Plaintiff's genitals. ( Id. ) Additionally, in November 2010, Stadt texted Plaintiff to " dance" and then gestured for Plaintiff to dance for Stadt and his friends. ( Id. )

In January 2011, Plaintiff participated in a Sidetrack tradition in which the six newest employees dress in underwear as " Baby New Year's" and dance on the bar. ( See Pl. Dep. at 272.) After Plaintiff participated in the bar dance, Stadt told Plaintiff that he had taken photographs of the dance and had captured " great shots" of Plaintiff's buttocks. (Pl. L.R. 56.1(b) Stmt. ¶ 13.) Stadt commented to Plaintiff that he had been " enjoying" the photographs at home, which Plaintiff understood to mean that Stadt had masturbated to the images. ( Id.; see also Pl. Dep. at 273.) Stadt then told Plaintiff that he had " all sorts of outfits" Plaintiff could wear in his playroom and complained that Plaintiff had not yet visited the playroom. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 13; see also R. 73-1, Pl. Resp. to Stadt Interrogs. at 4.)

In March 2011, Stadt suggested that Plaintiff wear a leather outfit to Sidetrack's Mardi Gras party. Stadt showed Plaintiff images on his cell phone of leather gear Plaintiff could borrow, including a harness, mask, gag, dog collars, jockstraps, shorts, and boots. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 14.) Stadt then told

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Plaintiff that he could model the clothing in the playroom. ( Id. )

On May 6, 2011, Plaintiff asked to speak privately to Stadt regarding comments that another Sidetrack employee purportedly had made about DuJan's and Plaintiff's religious beliefs. While Plaintiff was explaining the problem to Stadt, Stadt placed his hand on Plaintiff's knee, and then began moving his hand towards Plaintiff's genitals. ( Id. ¶ 14; see also Pl. Dep. at 274-77.) According to Plaintiff, Stadt's hand was centimeters away from touching his genitals through his jeans when Plaintiff stood up and walked toward the door. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 14.)

Plaintiff made comments regarding Stadt's harassing conduct to Jimmy Kays and Jason Gall as early as November 2010. ( Id. ¶ 31.) Kays, the night manager, had supervisory authority over employees when neither Johnston nor Chuck Hyde was present at the bar. ( Id. ) Jason Gall was a " bartender manager." ( Id. ¶ 30.) According to Plaintiff, he understood from other employees that he could approach any manager about harassment concerns. ( Id. ¶ 30.) Both Kays and Gall brushed off Plaintiff's concerns about Stadt, stating " that's just Bill." ( Id. ¶ 31.)

2. Defendant Kays

Plaintiff and Kays became friends several years before Plaintiff began working at Sidetrack. ( See Defs. L.R. 56.1 Stmt. ¶ 56.) On September 14, 2010, Kays texted Plaintiff, " Wish you were here to cuddle" around 5:30 a.m. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 17; see also R. 50-3, Kays' Texts at DEF000917.) Kays texted Plaintiff again several hours later apologizing for his " drunken texts." ( See Kays' Texts at DEF000918.)

In December 2010, after drinking with coworkers after the bar closed, Kays told Plaintiff to drive him to the train station. ( Id. ¶ 58.) On the way, Kays made lewd comments about how he wanted to perform oral sex on Plaintiff. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 17.) According to Plaintiff, he " slightly joking[ly], slightly forceful[ly]" told Kays that he should not make those comments because he is Plaintiff's manager. ( Id.; see also Pl. Dep. 291-92.) Kays--also " half joking[ly]" --responded that, as Plaintiff's manager, he could tell Plaintiff what to do. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 17; see also Pl. Dep. 292, 295.) Kays then instructed Plaintiff to drive to Kays' apartment so that Kays could pick up his luggage. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 17.)

Plaintiff alleges that after entering Kays' apartment, Kays pushed him against a wall, removed Plaintiff's pants, and began performing oral sex on him. ( Id. ) According to Plaintiff, he did not enjoy the sex, and he felt " stuck" and did not know what to do. ( See Pl. Dep. at 294.) Plaintiff states that Kays eventually stopped when Plaintiff did not ejaculate, lay down on the bed, and went to sleep. Plaintiff initially lay down too because he felt " tipsy," but ne eventually left and drove home. ( Id. ) Plaintiff did not report the incident with Kays to anyone at Sidetrack. ( See Defs. L.R. 56.1 Stmt. ¶ 58.)

Kays' account of the incident differs significantly from Plaintiff's account. According to Kays, Plaintiff voluntarily accompanied Kays to his apartment with the intention of engaging in sexual conduct with Kays. ( See id. ¶ 58; see also R. 47-9, Kays Dep. at 72-75.) Plaintiff fully disrobed upon entering Kays' apartment, which Kays interpreted to mean that Plaintiff consented to Kays' sexual advances. ( See Defs. L.R. 56.1 Stmt. ¶ 58; see also R. 47-9, Kays Dep. at 72-75.) The parties also dispute whether Plaintiff

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and Kays had a sexual relationship before this incident in December 2010. Defendants contend that Kays and Plaintiff had engaged in sexual activity on one other occasion before December 2010. (Defs. L.R. 56.1 Stmt. ¶ 56.) Plaintiff, however, asserts that although he spent the night at Kays' apartment once, they did not have sex. ( See R. 72, Pl. Resp. to Defs. L.R. 56.1 Stmt. ¶ 56.) For purposes of summary judgment, the Court resolves these factual disputes in Plaintiff's favor.

3. Defendant Oakes

In the fall of 2010, Plaintiff accompanied Oakes to his apartment after both men had been drinking at Sidebar. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 18.) Plaintiff continued to drink at Oakes' apartment and eventually lay down on the bed because he felt dizzy. ( Id. ) Plaintiff alleges that he later awoke to find Oakes attempting to perform oral sex on him. ( Id. ) Plaintiff testified that Oakes abruptly stopped, and Plaintiff then " passed out." ( Id. ) Plaintiff did not report the incident with Oakes to anyone at Sidetrack. ( See Defs. L.R. 56.1 Stmt. ¶ 52.)

Plaintiff alleges that several months later, Oakes mentioned Plaintiff in his discussion with other Sidetrack employees regarding the number of new hires with whom Oakes had engaged in sexual conduct. (Defs. L.R. 56.1 Stmt. ¶ 54.) According to Plaintiff, Oakes described himself as the Sidetrack " welcome wagon" because he had had sex with seventeen new Sidetrack employees. Oakes then turned to Plaintiff and said, " right, Joe?" ( Id. ) Plaintiff claims that Oakes' comment embarrassed him in front of his co-workers. ( Id. ) Plaintiff does not recall whether he reported this incident to anyone at Sidetrack, but he testified that he was " sure that the people in other rooms and managers heard it." ( See Pl. Dep. at 305.)[4]

4. Other Sidetrack Employees

Plaintiff alleges that in August or September 2010, Daniel Laster, another Sidetrack employee, followed Plaintiff to his car after work one night, rubbed his body against Plaintiff, and kissed Plaintiff before Plaintiff could push him away. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 19.) Plaintiff pushed Laster away and told Laster not to kiss him again. ( See Pl. Dep. at 377.) After Plaintiff spurned Laster's advances, Laster began criticizing Plaintiff and making false complaints about him at work. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 19; see also Pl. Dep. at 377-80.) Plaintiff asserts that Laster also touched him inappropriately on several occasions. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 19; see also Pl. Dep. at 408.) According to Plaintiff, Laster would purposely brush by Plaintiff trying to rub his hand across Plaintiff's buttocks or genitals at work. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 19; see also Pl. Dep. at 408.) Plaintiff testified that he believes he reported Laster's conduct to Kays in the fall of 2010. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ¶ 19; see also Pl. Dep. at 408-09.)

Additionally, Plaintiff asserts that a Sidetrack bartender, Juan Carlos Ramirez, propositioned Plaintiff for sex in February 2011. (Pl. L.R. 56.1(b) Stmt. of Add'l Facts ΒΆ 19.) Leading up to the incident, Plaintiff, Ramirez, and several other Sidetrack employees had been drinking heavily at another bar. According to Plaintiff, ...

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