Loughman, Kathleen N v. Malnati Organization ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1564
KATHLEEN N. LOUGHMAN,
Plaintiff-Appellant,
v.
MALNATI ORGANIZATION, INCORPORATED,
doing business as LOU MALNATI’S PIZZERIA,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 7899—Harry D. Leinenweber, Judge.
____________
ARGUED NOVEMBER 2, 2004—DECIDED JANUARY 18, 2005
____________
Before POSNER, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Kathleen Loughman brought suit
against her employer, Malnati Organization, Inc. (d/b/a Lou
Malnati’s Pizzeria), claiming it failed to protect her from
sexual harassment by her coworkers. The district court
granted Malnati’s motion for summary judgment, and
Loughman appeals. We start with the facts, reviewing them
as we must—in the light most favorable to Loughman. See
Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1028 (7th
Cir. 2004).
2 No. 04-1564
The Malnati corporation owns and operates a string of
pizzeria restaurants in the Greater Chicago area. The events
in this case occurred at the one it operates in Naperville,
Illinois. Loughman began working at the restaurant, first
as a “food runner” (later as a carryout cashier), in June 2000,
when she was 17 years old. During her first 3 weeks on the
job, kitchen workers whistled at her and made several inap-
propriate comments to her. Loughman reported the com-
ments to one of the managers at the restaurant, Jim Solis,
and told him that they made her feel uncomfortable. Solis
told Loughman that he would talk to the kitchen workers.
However, they continued to ask her personal questions such
as “do you like to have sex” and “will you have sex with me.”
Though the questions bothered Loughman, three physical
confrontations form the basis of her complaint. The first
came one night in November 2000, when Loughman was
taking food to a freezer in the basement. Martin Ruellas, a
kitchen employee, walked up with a similar tray of food.
Loughman put her tray away and walked past Ruellas, who
caught up to her, put his arm around her waist, pushed her
into a room on the other side of the hall, and tried to kiss
her. Loughman pushed him away and walked out, but
Ruellas again caught up to her and blocked her path to the
stairs for several minutes before relenting.
That night, Loughman told another Malnati’s employee,
Mike Heller, what happened. The next day, Loughman re-
ported the incident to Solis, who already heard about it from
Heller. Solis told Loughman that he would talk to Ruellas,
which he did, warning him that he would be fired if he
touched Loughman again. The threat apparently worked,
and Ruellas did not bother Loughman again. Solis then re-
ported the incident to Lori Camp, a high-ranking Malnati
employee, who said she discussed the incident with all of
the restaurant managers.
The second incident occurred nearly a year later when
Loughman entered a walk-in cooler to get some cheese. Two
No. 04-1564 3
employees, Hector Hernandez and Guillermo Siffuentes,
walked in behind her, turned off the light, and closed the
cooler door. Hernandez grabbed Loughman, pinned her
against the wall, grabbed her chest, and tried to put his
hands down her pants. Loughman screamed and swung her
arm, hitting Siffuentes. Siffuentes fell back into the cooler
door, opening it. At that point, Hernandez backed away,
and Loughman ran out of the cooler.
Safely back in the front of the restaurant, Loughman told
fellow employee Julie Luba what happened. Luba reported
the incident to Solis, who asked Loughman about it. Luba
also discussed the confrontation with Cori Gros, another
manager, who Loughman says told her: “[T]his is the kind
of stuff that’s going to happen and something [Loughman]
should expect”; “being nice to [the Hispanic kitchen work-
ers] is like playing with fire”; “this is in their culture”;
“most Mexicans are pigs”; and that Loughman should “be a
bitch to them.” Gros denies making these statements, but,
to repeat, we must accept that they were made at this stage
of the case.
After the incident, Loughman continued working the same
shifts as Hernandez and Siffuentes and says that the two
continued making inappropriate comments. Loughman told
Solis about the comments, but no action was taken until a
year later, when Hernandez was fired.
The final physical encounter took place in August 2002.
Loughman was talking to a customer on the phone when a
driver for the restaurant, Tom Schaller, walked up behind
her, ran his hands through her hair, slid one hand up her
shirt, wiggled his fingers on her stomach, giggled and ran
away. That night, Loughman reported the incident to Gros.
A couple of days later, Jim D’Angelo, Malnati’s district
manager at the time, apologized to Loughman for the inci-
dent and began investigating the first two incidents, which
he claims he had just learned about (Gros and Camp tes-
4 No. 04-1564
tified that D’Angelo had heard about the earlier incidents
soon after they took place). That investigation led to the
firing of Hernandez.
The EEOC issued Loughman a notice of right to sue in
October 2002, while she was still working at the restaurant
(she resigned in May 2003). She then filed suit against
Malnati’s, charging a violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2003 et seq. We review de novo the
district court’s grant of summary judgment to Malnati. See
Williams, 361 F.3d at 1028.
Generally, an employer may raise an affirmative defense
to a claim under Title VII by showing that it “exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior” and “that the plaintiff employee unrea-
sonably failed to take advantage of any preventive or cor-
rective opportunities provided by the employer or to avoid
harm otherwise.” Burlington Indus., Inc. v. Ellerth, 118 S.
Ct. 2257, 2270 (1998). In cases involving harassment by a
coworker, an employer is liable only if “it negligently failed
to take reasonable steps to discover or remedy the harass-
ment.” Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999).
See also Parkins v. Civil Constructors of Ill., Inc., 163 F.3d
1027, 1032 (7th Cir. 1998). This is so because employers do
not entrust co-employees with significant authority with
which they might harass a victim. An employer is liable for
a co-employee’s harassment only when it is negligent either
in discovering or remedying the harassment. And when it
comes to remedying a bad situation, greater vigor is neces-
sary when the harassment is physically assaultive.
Noting that Ruellas did not bother Loughman after the
first incident, that Malnati’s eventually fired Hernandez,
and that Schaller apologized to Loughman and was trans-
ferred to another store, the district court found that “Malnati’s
not only had a sexual harassment policy in place but had an
effective one.” We’re not convinced, however, that the
No. 04-1564 5
policy—or Malnati’s response to the incidents involving
Loughman—really was that effective. Loughman was not
complaining merely of inappropriate jokes or comments,
though she put up with those as well, but of serious physi-
cal violations. Considering the severity of the incidents, a
reasonable jury could determine that simply talking to the
people involved in the first two aggressive incidents was not
a sufficient response. See Longstreet v. Ill. Dep’t of Correc-
tions, 276 F.3d 379, 382 (7th Cir. 2002) (“An employer must
take more care to protect employees, depending on the
seriousness of the harassment.”). The mere fact that none
of the employees physically assaulted Loughman a second
time does not necessarily mean that Malnati’s response was
adequate. See Smith, 189 F.3d at 535 (“Just as an employer
may escape liability even if harassment recurs despite its
best efforts, so it can also be liable if the harassment
fortuitously stops, but a jury deems its response to have
fallen below the level of due care.”).
In addition, the consistent stream of harassment at the
restaurant suggests that Malnati’s policy was actually not
very effective at all. Gros testified that she talked to the
kitchen workers between 10 and 20 times about how to
treat female employees, often in response to complaints from
the female employees about inappropriate comments made
to them. While a reasonable jury could view such diligence
as evidence of Malnati’s commitment to preventing haras-
sment, it might also think the frequency of the discussions
suggests that a different approach was needed. A jury could
determine that, at some point, the management at Malnati’s
needed to stop merely issuing warnings and start taking
disciplinary action against the offending employees. Gros’s
comments to Loughman suggesting that harassment was
inevitable because it is in the “culture” of Hispanic workers
do not help the restaurant’s case, either. A jury could take
Gros’s comments to suggest that Malnati’s thought any
efforts to prevent harassment would be fruitless.
6 No. 04-1564
Testimony of two other female Malnati’s employees, Frances
Understein and Stephanie Boyd, also supports Loughman’s
contention. Both said that Ruellas sexually assaulted them,
and Understein claimed that she was attacked by Siffuentes
much as Loughman was. Understein reported the assaults
against her to Solis, so, at a minimum, Malnati’s was aware
of incidents involving her (Malnati’s claims it did not know
of the alleged assault on Boyd). Put together with the recur-
ring nature of the harassment against Loughman, a rea-
sonable jury could find that Malnati’s was negligent in
addressing its clear sexual harassment problems. See
Longstreet, 276 F.3d at 382 (“We have recognized that de-
terrence is an objective in imposing liability on employers
for the creation of a hostile environment by a plaintiff’s co-
workers.”).
Malnati’s other arguments are better made to a jury.
First, the restaurant claims that Loughman should have
reported the incidents to more senior managers when they
happened and that she did not tell the whole story about
the first two incidents until almost a year after the second
incident, when D’Angelo asked her about them. While it is
unclear when D’Angelo learned of Loughman’s allegations,
it is undisputed that Solis knew about the incidents soon
after each occurred. And while Malnati’s sexual harassment
policy allowed employees to report incidents to upper
management, a reasonable jury could find that Loughman
took adequate steps by reporting the incidents to Solis, one
of her supervisors. Moreover, the environment at Malnati’s
might have weakened its policy. One employee, Hannah
Bulak, said she told D’Angelo that she felt she could not
complain about improper conduct at work because the
managers had spoken to her and reprimanded her about
flirting in the past, making her worry that she would be
blamed if she reported any problems.
Malnati’s also claims that no reasonable jury could find
that Loughman viewed Malnati’s as a hostile working en-
No. 04-1564 7
vironment, as required for a Title VII claim. See Harris
v. Forklift Sys., Inc., 114 S. Ct. 367, 370 (1993). Malnati’s
argues that “three isolated incidents,” as it describes them,
do not make for a hostile work environment and that
Loughman would have complained to one of the other man-
agers immediately after the first two incidents or would not
have continued to work at the restaurant if she found the
environment there to be offensive. Again, Malnati’s is free
to make that argument at trial. But, viewing the evidence
in the light most favorable to Loughman, a reasonable jury
looking at the severity of the incidents and Loughman’s
frequent complaints could find that Loughman believed her
work environment was offensive. For these reasons, we
REVERSE the district court’s judgment and REMAND the case
for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-05