Gunn v. On the Border Acquisitions, LLC

298 F. Supp. 3d 811
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 28, 2018
DocketCIVIL ACTION NO. 16–1271
StatusPublished
Cited by9 cases

This text of 298 F. Supp. 3d 811 (Gunn v. On the Border Acquisitions, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gunn v. On the Border Acquisitions, LLC, 298 F. Supp. 3d 811 (E.D. Pa. 2018).

Opinion

STENGEL, C.J.

This case involves a claim of sexual harassment, sex-based discrimination, and retaliatory practices. Plaintiff, Cynthia Gunn, was employed as a server by defendant, On the Border Mexican Grill and Cantina ("OTB"). Plaintiff alleges she was sexually harassed by defendant, William Walker, who was also employed by OTB. Plaintiff asserts four claims against OTB: (1) hostile work environment stemming from sexual harassment under Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) retaliation under Title VII; (3) negligence under Title VII1 ; and (4) negligent retention under state law.

*814OTB moves for summary judgment as to all four claims. (Doc. No. 34.) Plaintiff opposed OTB's motion. (Doc. No. 37.) For the reasons discussed below, OTB's motion for summary judgment is granted in full.

I. Background

Plaintiff began working at OTB as a server in September of 2009 at the Airport Road restaurant in Allentown, Pennsylvania. (JA 0032.) Defendant, Walker was a cook for OTB. (JA 0444.) At the time of the incident, Walker was out of work on medical leave as a result of a serious health condition. (JA 0494.)

OTB's Policies and procedures

OTB's Employee Handbook identifies its policies and procedures regarding all forms of discrimination and harassment. (JA 0319-21.) OTB's policy prohibits sexual harassment and "applies to everyone involved in [its] operations (including guests) and prohibits harassment by any Team Member of the Company." (JA 0319-20.) OTB's policy expressly prohibits "[r]etaliation against any person who voices a concern, files a complaint with Human Resources or participates in any subsequent related investigation...." (JA 0320.)

OTB Team Members who are subjected to any form of harassment or discrimination, or who have witnessed harassment or discrimination, are obligated to report it immediately to any of the following: supervisors, managers, Area Directors, or Human Resources. (JA 0320.) OTB Team Members are free to pick from among those listed without any requirement that they follow a specified chain of command in reporting the harassment or discrimination. (JA 0320.)

The employee handbook sets forth the Complaint Resolution Procedure available to employees experiencing any work related issues such as harassment. (JA 0320.) OTB maintains an "Open Door Policy" that "encourages an open and frank atmosphere in which any problem, complaint, suggestion, or question receives a timely response." (JA 0316.) Team Members can also file a complaint anonymously by calling the Team Member hotline or utilizing the website at www.MySafeWorkplace.com. (JA 0314.) In addition to the policies outlined in the Employee Handbook, the subject OTB restaurant had a poster on the door of the managers' office which provided information about reporting complaints. (JA 0228-29; JA 0345.)

The March 23, 2015 Incident

On March 23, 2015, plaintiff was working the opening shift from 11:00 a.m. until 4:00 p.m. (JA 0056.) Shortly after 11:00 a.m., Walker arrived at the restaurant with a co-worker, Sherwood Sanders, to submit a physician's note authorizing him to return to work effective March 30, 2015. (JA 0727-28; JA 061; JA 0494.)

Plaintiff was walking with two soda cups in her hands when she first saw Walker. (JA 0063.) Walker approached plaintiff and leaned very close to her face. (JA 0064-65.) Plaintiff stopped walking and was holding the soda cups in her hands directly in front of her body at chest level. (JA 0070.) Walker leaned into her, reached over the cups and used both of his hands to grab and hold onto her breasts. (JA 0066; JA 0070.) Plaintiff alleges that while Walker groped her breasts he said "my God, I miss these...." (JA 0066.) Plaintiff claims that Walker held onto her breasts for ten seconds. (JA 0067-68.) Walker did not touch her anywhere other than her breasts. (JA 0066-67.)

Plaintiff testified that she left the kitchen and served the sodas she was carrying to her customers. (JA 0073.) After she served the sodas, plaintiff approached a co-worker, Caitlin Premich and said "you won't believe what Willie [Walker] just did to me" and she described how Walker *815allegedly touched her. (JA 0077.) During this conversation, another co-worker, Toni Trunzo, approached and asked what they were talking about. (JA 0077-78.) Plaintiff described the incident to Ms. Trunzo. (JA 0078-79.)

Approximately an hour after the incident occurred, plaintiff went to report it to a manager. (JA 0449-450.) She walked into the kitchen and saw her co-worker Sherwood Sanders, who accompanied Mr. Walker to OTB that morning. (JA 0082.) Plaintiff asked Sanders if he saw what Walker did to her, but he replied that he did not see anything. Plaintiff then described the incident to Sanders. (JA 0087-88.)

Plaintiff proceeded to the managers' office. (JA 0088.) Plaintiff saw the two managers, Nick Clowers and R.J. Cabrera standing near an exit and described the incident. (JA 0089-90.) Clowers took plaintiff to the managers' office and she described the incident again. (JA 0091.) Clowers recommended that they contact Human Resources, but plaintiff said that she wanted to wait before contacting Human Resources. (JA 0092.) Plaintiff testified that she was "still in shock" and that she wanted to make sure her tables were in order. (JA 0092.)

About thirty minutes after their first conversation, Clowers approached plaintiff again, asked if she was okay, and asked who witnessed the incident. (JA 0094.) Plaintiff identified Sanders and Premich as having witnessed the incident. (JA 0340; JA 0447-48.) Clowers prepared a written statement that the plaintiff reviewed and signed. (JA 0055.) Clowers followed-up with plaintiff several times throughout the day, trying to calm her down and assuring plaintiff that her tables would be taken care of while they handled this. (JA 0095.) Plaintiff testified that Clowers was caring and concerned, and that he did everything she asked him to do. (JA 0095.)

The Investigation

Approximately three or four hours after the incident, at the urging of Clowers, plaintiff contacted Human Resources. (JA 0450.) Plaintiff spoke with Debra Blackmon, Senior Regional Resources Manager for OTB who is responsible for the eastern region. (JA 0099; JA 0351-52.) Clowers was present for the conversation. (JA 0102-03.) Ms. Blackmon asked plaintiff to describe the incident, and asked what plaintiff would like to have as a resolution. (JA 0103.) Blackmon also asked if there were any witnesses. (JA 0495; JA 104-05.) Plaintiff identified Sanders and stated that other team members were also present. (JA 0495; JA 104-05.)

Ms. Blackmon thanked plaintiff for reporting her concerns and asked plaintiff to refrain from speaking with anyone about the incident. (JA 0495; JA 0105.) Ms. Blackmon advised plaintiff that she would conduct an investigation into the allegations of harassment against Mr. Walker, and that she would stay in contact with plaintiff. (JA 0106.) Plaintiff believed that Ms. Blackmon was concerned about her allegations, and plaintiff testified that the conversation was professional. (JA 0106.) Ms. Blackmon noted that plaintiff was defensive and angry when questioned about the incident. (JA 0494-95.)

On March 24, 2015, the day after the incident, Ms. Blackmon received an email from Clowers that plaintiff attempted to reach her. Ms.

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298 F. Supp. 3d 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunn-v-on-the-border-acquisitions-llc-paed-2018.