Siegel, O’Connor, O’Donnell & Beck, P.C. Restaurant Specific Sexual Harassment PowerPoint 2019

1. A REVIEW OF RELEVANT SEXUAL
HARASSMENT CASES FOR THE
RESTAURANT INDUSTRY
RYAN A. O’DONNELL ESQ.
CHELSEA F. RUZZO, ESQ.

2. BLIKRE V. COMM’N ON HUMAN RIGHTS &
OPPORTUNITIES
 Plaintiff was a waitress at Terra Ristorante and complained of sex
discrimination and constructive discharge to the CHRO. The Plaintiff
testified and provided witnesses, one of whom was another female
employee who had also filed sexual harassment claims. The investigator
did not speak with her witnesses, and ultimately found there was no
reasonable cause to find discrimination, stating Plaintiff failed to present
corroborating evidence. Plaintiff appealed.
 Decision: The court held that the CHRO investigator unreasonably failed to
give weight to substantial supporting evidence and instead relied on
conjecture and inferences. Further, the CHRO had imposed eye witness
and other corroboration requirements which were not required by the law.
 Elements of Sexual Harassment: Plaintiff alleged she was subjected to
sexually oriented remarks and contact, such as comments regarding her
breasts and her employers would press themselves against her body and
fondle her.

3. D’ANNUZIO V. AYKEN, INC.
 Three female employees who worked at
Defendants’ restaurant in various positions brought
suit alleging multiple instances of severe sexual
harassment by multiple coworkers.
 Decision: The court granted summary judgment to
the plaintiffs, stating there was overwhelming
evidence, and the Defendants’ were complicit in
every way, provided no reasonable avenue for
complaints, and did nothing about the harassment.

4. D’ANNUZIO CONT’D…
 Elements of Sexual Harassment: Incidents of harassment included
physical contact, such as plaintiffs’ being slapped on their buttocks,
having their bodies groped, massaged; sexual comments, such as
being told by coworkers they were sexy, they wanted to get them in
bed, have sex with them, could pleasure them, that they had nice
bodies; lewd gestures; and being repeatedly asked out by coworkers
and delivery persons. This behavior often occurred in front of other
staff and in front of the general manager. The behavior escalated to
such a degree that one of the plaintiffs was sexually assaulted in the
restaurant basement.
 Plaintiffs alleged they complained of the harassment multiple times
to the general manager, but the harassment continued and the
complaints were never brought to the human resources department.
None of the harassers were ever disciplined. In fact, the general
manager was seen laughing with the harassers about the victims.

5. SANTANA V. LATINO EXPRESS
RESTAURANTS, INC.
 Plaintiff was a female server who brought suit alleging
she was sexually harassed by the manager and co-
owner of Defendants’ restaurant. She also claimed she
was retaliated against for complaining of the
harassment and was constructively discharged.
 Decision: The court found that these incidents were
more than petty or trivial, that the Defendant knew or
should have known that his behavior was unlawful.
Further that Defendants’ retaliated against Plaintiff and
she was in fact constructively discharged.

6. SANTANA, CONT’D…
 Elements of Sexual Harassment: Plaintiff alleged she was subject to
constant criticism of her clothes, and was singled her out on a
near-daily basis, directing her to dress sexier and wear tighter
clothing even though other servers dressed in a similar way and
there was no dress policy. Furthermore, he made repeated
unwelcome remarks to her and unwanted romantic advances
despite the Plaintiff stating she was not interested.
 Plaintiff complained to the co-owner of the harassment. After her
complaint she was assigned a disproportionate amount of less
desirable tasks, such as cleaning bathrooms, she was subject to
being screamed and glared at by the manager in front of others,
and was reprimanded by him for things she had not previously
been reprimanded for.

7. CARAVANTES V. 53RD ST. PARTNERS, LLC
 Plaintiffs, two male employees who worked in various
positions at Defendants’ restaurant, claimed they were
repeatedly sexually harassed by their assistant
manager, Velandia.
 Decision: The court found the Defendants’ liable for
Velandia’s harassment of Caravantes, but not the other
plaintiff, Sotaribba.

8. CARAVANTES CONT’D…
 Elements of Sexual Harassment: Witnesses and parties testified at trial
regarding a “game” played by many of Remi's male employees. As part of
this game, male employees would call each other names such as “mami,”
“puta,” “prosti,” or “flower.” They would also grab or slap each other on
the buttocks or on the genitals, and jokingly simulate sex acts with one
another. Velandia admitted to touching the Plaintiffs, among others, on
their genitals, over the clothes, as part of this game.
 Caravantes alleged Velandia began touching him in a sexual manner at
work in 2005, grabbing his genitals. He told Velandia to stop, but Velandia
persisted and became more aggressive- sticking his hand down
Caravantes’ pants and touching his genitals directly. Oftentimes after
touching his genitals Velandia would smell his hand. This was caught on
video. Caravantes alleged he was groped several times a day. Caravantes
alleged Velandia made sexual comments, such as “how big is it” and “let
me suck it.” Velandia’s behavior escalated in and he began performing
oral sex on the plaintiff on a nearly daily basis.

9. CARAVANTES CONT’D…
 In mid-2007 Plaintiff inquired about becoming a server, and alleged that
Velandia stated he could become a server in exchange for something and
forced Caravantes to have anal sex. This occurred several times, and
Caravantes stated he did not speak up for fear of losing his job, and that
he would not become a server without giving in to these sexual advances.
 Plaintiff Sotarriba alleged that Velandia began sexually harassing him in
2001. He alleged Velandia would frequently grab Sotarriba’s genitals,
grind his buttocks into him, or grab Sotarriba's shirt and pull him close. He
would make sexually explicit comments to Sotarriba such as “Let me suck
it,” “Let me touch it,” or “I want to see how big it is.” Sotarriba told
Velandia to stop but he continued his behavior. Plaintiff alleged he did not
tell anyone of the conduct for fear of retaliation. Sotarriba also alleged an
incident where he was changing in the staff locker room when Velandia
and another employee came in and attempted to pull his pants off.
Soratibba alleged that Velandia began assigning him extra work, work that
was outside of his job, and refused to allow him to take his break.

10. CARAVANTES CONT’D…
 Another employee, Pastor testified that Velandia performed oral sex on
him at work while he was a minor in 2004 and continued to assault him for
3 years. He also alleged that Velandia would put his hand down his pants
and smell his hand afterwards. Pastor’s brother who also worked at the
restaurant alleged Velandia began inappropriately touching him as a
minor. He alleged that to receive an advance on his tips he had to allow
Velandia to perform oral sex on him.
 Defendants did not have a written sexual harassment policy, nor did it
provide sexual harassment training to employees.
 The court found Caravantes credible, but did not find Sotaribba’s
testimony credible.

11. CAEN V. MEDINA
 Facts: Plaintiff, an employee of Defendants’ restaurant,
Wendy’s, brought suit alleging she was being sexually
harassed by her night crew manager.
 Decision: The court did not find Defendants’ liable for
any sexual harassment. The court found the Plaintiff
unreasonably failed to take advantage of their
harassment policy.

12. CAEN CONT’D…
 Elements of Sexual Harassment: Plaintiff engaged in sexually suggestive
banter with Medina and other co-workers.
 In November of 2004, Plaintiff dated Medina and had sexual relations with
him. Plaintiff alleged that she broke off the relationship. She further
alleged that Medina raped her in the restaurant bathroom. Afterwards she
asked her manager to change her schedule so as to not work with Medina,
but did not give a reason as to why. Plaintiff alleged that on one occasion
her schedule did require her to work with Medina, and she claims he
groped and abused her. Her schedule was then changed back to working
with Medina. Plaintiff claims Medina continued to make unwanted
advances, including grabbing her breasts.
 On one occasion another manager saw Medina rubbing Plaintiff’s
shoulders, but the Plaintiff said he was okay with it. Plaintiff did not
complain to management of sexual harassment until after she quit in
2005. At that point Defendant conducted an investigation and fired
Medina.

13. CAEN CONT’D…
 Defendant had an anti-sexual harassment policy that
was distributed to employees during a training and in
their employee handbook. They also had posters with
human resources information posted in the work areas.

14. YERRY V. PIZZA HUT OF SE. KANSAS
 Plaintiff, a delivery driver for Defendant, brought suit claiming sexual
harassment and retaliation.
 Decision: The court found that while only one instance was complained of,
it was a severe and humiliating physical instance which was sufficient to
alter the terms and conditions of employment, and a reasonable jury
could find a hostile work environment. However, Defendant immediately
investigated the claim and suspended the shift manager, thus the court
found it acted promptly and reasonably and there was no reason to
impute the shift manager’s action to the restaurant. Further, there was no
adequate basis to conclude he was subject to any adverse employment
action and dismissed the claims.

15. YERRY CONT’D…
 Elements of Sexual Harassment: Plaintiff alleged one night he was
assigned to close the restaurant with his shift manager. He returned from
his last delivery and was questioned by the manager as to a missing
delivery ticket. The manager accused Plaintiff of trying to steal the money,
and stated that he would call the police and plaintiff would be fired. The
manager insisted he should be punished and told the plaintiff that he
would either spank plaintiff or call the police. Plaintiff refused. Plaintiff
completed his closing duties and prepared to leave but his manager
insisted that he be punished in some way. The manager told the Plaintiff
that he would let him go into the restroom and spank himself with his own
belt. Plaintiff claims he was afraid of the manager and afraid of losing his
job, so he followed him into the men's restroom. While in the restroom,
the manager locked the door and Plaintiff lowered his pants, and spanked
himself. The manager watched but did not touch him. Thereafter, Plaintiff
immediately left the restaurant.

16. YERRY CONT’D…
 The following day the Plaintiff reported the incident to
the restaurant manager. The shift manager was
suspended from work that very day and never returned.
 Plaintiff continued to work for Pizza Hut, but claims
that he was treated differently by his co-workers, such
as eye rolling, and the restaurant manager was more
critical of his work and not as friendly to him as he had
been before the incident.

17. SCOPPETTONE V. MAMMA LOMBARDI’S
PIZZICO, INC.
 Plaintiff appealed the lower court’s decision that one of the employees
who allegedly harassed her was not her supervisor for purposes of Title VII
vicarious liability.
 Decision: The court stated there was no evidence that the employee
possessed the sort of supervisory power that could subject Mamma
Lombardi's to vicarious liability. Further, the Defendant had provided a
reasonable avenue for complaint; it had a sexual-harassment policy; and it
immediately fired the employee after hearing the Plaintiff’s complaint.
 Elements of Sexual Harassment: Plaintiff introduced evidence that the
employee initially served as her trainer and occupied a higher position in
the restaurant's hierarchy, but the court stated that nothing demonstrated
that power “given by [Mamma Lombardi's] to [Will]” enabled or aided him
in engaging in harassing behavior. In fact, the most egregious incident
occurred while both Will and Plaintiff were following instructions given by
an employee who outranked both of them.

18. ANDERSON V. YARP REST. INC.,
 Plaintiff, a waitress at Defendants’ restaurant, brought suit alleging sexual
harassment due to actions of her supervisor.
 Decision: The court held there was sufficient evidence to hold the
Defendant liable for its supervisor’s sexual harassment and denied the
Defendants’ motion for new trial.

19. ANDERSON, CONT’D…
 Elements of Sexual Harassment: Plaintiff testified that immediately after
beginning employment with the Defendant a supervisor made sexual
comments and advances toward her. She alleged on another occasion her
supervisor “snapped her bra” and said he wanted to see what color bra
she was wearing. Her supervisor would approach her from behind and put
his hands around her waist and into the front pocket of her apron, or he
would put his hand over her left shoulder and drop his hand on top of her
left breast. He continued to make sexual advances and comments toward
her, including wrapping his arms around her, bragging about his sexual
exploits, and pushing his hips into her. On one occasion the supervisor
pulled Plaintiff’s skirt up in front of management.
 Plaintiff continued to complain to management, and they continued to
take no action, laugh at her, and tell her to leave if she didn’t like it. The
supervisor was never disciplined, and she was put in slower work areas,
given fewer hours, etc.

20. LOPES V. CAFFE CENTRALE, LLC.
 Plaintiff, a server in Defendant’s restaurant, brought suit alleging he was
sexually harassed by a customer. Defendant moved for summary
judgment.
 Decision: The court denied held there were factual issues regarding hostile
work environment and constructive discharge claims and denied the
Defendants’ motion for summary judgment.

21. LOPES, CONT’D…
 Elements of Sexual Harassment: Plaintiff alleged that a customer at
the Restaurant, referred to Lopes as “she,” “her,” “jungle boy,” and “third-
world boy” to third persons within earshot. This customer blew kisses at
him, blew on his neck, and touched him on his waistline and his genitals.
Plaintiff complained to the manager but was told by management to go
along with the customer, that the customer was a homosexual, and that he
had a lot of influence with other customers. Plaintiff alleged that the
customer approached him on the street after the Restaurant's closing time
and sought to embrace and kiss him. Plaintiff resisted and ended the
encounter, but the customer continued his suggestive conduct when in
the Restaurant.
 Thereafter, the Plaintiff confronted the customer about the harassment.
Plaintiff claims he was instructed by management to apologize to the
customer, and he asked his manager if he would need to accede to a
request for sexual favors. Plaintiff claims his manager told him if that’s
what it would take for the customer to accept his apology then do it.

22. BUFORD V. MCDONALD’S CORP.
 Plaintiff, an employee of McDonald’s Groton location, brought suit
claiming discrimination and retaliation as she was sexually harassed by her
acting supervisor.
 Decision: The court found there was sufficient evidence to allow a trier of
fact to conclude she was subjected to a hostile work environment, that
there was an adverse employment action constituting retaliation, and
denied Defendants’ motion for summary judgment.
 Plaintiff alleged that she was sexually harassed by the acting supervisor.
Allegations included repeated incidents of sexual comments and physical
contact. Plaintiff also asserted that as a result of complaining about the
harassment, she did not receive a promotion she had been
promised. Plaintiff complained to the McDonald's service center and met
with an investigator and was transferred out of the Groton location.