Opinion
No. 97 C 8342
March 24, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Edward H. Dandan has sued the Radisson Hotel in Lisle, Illinois, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that he was discriminated against on the basis of sex and that he was suspended in retaliation for pursuing relief under the Act. Radisson moves for summary judgment. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.
1. BACKGROUND
A. Ruling on a Motion for Summary Judgment
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that there is no dispute of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). This Court must evaluate the admissible evidence supporting the motion in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the nonmovant, a reasonable jury could return a verdict for the nonmovant. Id.
In making its determination, the Court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant' s favor. In employment discrimination cases, the record is reviewed with heightened scrutiny because credibility and intent are crucial issues.Talanda v. KFC National Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998) citing, Courtney v. Biosound, Inc., 42 F.3d 414 (7th Cir. 1994)
B. Relevant Facts
The following is derived from the parties' statements of fact, and are undisputed unless otherwise indicated. On October 3, 1995, Radisson hired Dandan as an assistant bartender. Shortly after, Dandan was steadily barraged with vulgar and obscene insults from his coworkers. Rick Zoellner has the dubious distinction of being the primary source of the insults against Dandan. In October 1995, Dandan worked with Zoellner during the evening shift at Kicks, the hotel bar lounge. Dandan alleges that starting in April 1996, Zoellner regularly insulted him with names like fruitcake, fagboy, and Tinkerbell. In October 1996, Zoellner became Dandan's supervisor. This is when Zoellner's insults intensified in their cruelty. Dandan testified that Zoellner's insults progressed from name-calling to very graphic insults, such as: "didn't your boyfriend do you last night?"; "shove [a vacuum cleaner hose] up your a**"; "take [a tube lubricator] home, you'll have fun with it"; "do you want to eat this [pointing to his crotch]? Eat this, Eddie"; "I hate you because you are a faggot." Zoellner also criticized Dandan's speech patterns and kinesics for being feminine. Dandan alleges that Zoellner's insults occurred nearly every day.
Dandan told Zoellner to stop his verbal insults at least three times, but to no avail. In November 1996, Dandan complained to Diane Holzapfel, the restaurant manager. Dandan states that Holzapfel said that she would have a discussion with Zoellner about his conduct. Indeed, in late November 1996, she advised him that he should be more cautious in how he dealt with Dandan. However, Zoellner's harassment of Dandan persisted after Holzapfel's discussion with him. In December 1996, Dandan complained to Sherif Soltan, the assistant restaurant manager. Soltan informed Zoellner of Dandan's complaint. Still, Zoellner's insults continued.
Dandan also complained to Chip Browman, the food and beverage director, and Martin Krukowski, a bartender. Although Browman spoke in general terms with Zoellner about his management style, the insults toward Dandan continued. In late December 1996, Dandan complained to Maria McNamara, the director of human resources. McNamara launched an investigation into Dandan's complaint. McNamara's investigation included interviews with Zoellner and several other employees of the bar. McNamara concluded that Zoellner had behaved inappropriately, and she issued a written warning to him. The investigation resulted in McNamara issuing a written warning to Zoellner on January 17, 1997. The warning consists of a summarization of the discussion that McNamara had with Zoellner, in which he admits making "unprofessional comments towards Mr. Dandan." The warning concludes with the admonishment that Zoellner must "refrain from addressing or using towards any associates with unprofessional/inappropriate names or phrases. . . [y]ou are responsible for providing an environment where other associates can feel comfortable reporting to work each day." Shortly thereafter, Zoellner transferred to a different shift. Dandan testifies that after McNamara's intervention, Zoellner's insults finally stopped.
Zoellner testified that the insults reflected his frustration with Dandan's job performance. Zoellner also testified that he had no sexual desire for Dandan, and that he used vulgar language towards females as well as males. Indeed, Zoellner had been admonished for using vulgar language with other employees, male and female. For instance, Nicole Leyba, another Radisson employee, also complained to McNamara about Zoellner's language.
Dandan asserts that after the situation with Zoellner was resolved in early 1997, Dandan was harassed by members of the kitchen staff The insults from the kitchen staff were in the same vein as Zoellner's: disparaging remarks about homosexuals. Dandan again complained to McNamara and also to John Luchtel, the head chef. Shortly after, McNamara informed Dandan that Luchtel disciplined one of the members of the kitchen staff for the insults to Dandan. After Luchtel's intervention, most of the insults from the kitchen staff stopped.
Prior to his complaints about his co-workers' insults, Dandan, received above average performance appraisals. On September 20, 1997, however, Sergio Bustelo, the restaurant manager, suspended Dandan for failing to follow a request not to chew gum. Dandan was suspended for two weeks. McNamara testified that a normal suspension for such an infraction is 3-5 days. Around the time Dandan was suspended, McNamara became suspicious that Dandan was going to file suit against Radisson.
On September 26, 1997, McNamara received a complaint from the EEOC regarding discrimination against Dandan.
1. DISCUSSION
A. Same-Sex Discrimination
Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of . . . sex . . ." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has recognized that "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment, Title VII has been violated." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993); see also, Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405 (1986).
Title VII's prohibition against sexual discrimination extends to men and women. Newport News Shipbuilding Dry Dock Co. v. EEOC, 462 U.S. 669, 684, 103 S.Ct. 2622, 2632 (1983). Further, Title VII extends to victims of harassment from members of the same sex, so long as the claimant can demonstrate that the harassment is based on sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80, 118 S.Ct. 998, 1001 (1998). Because same-sex harassment is only actionable under Title VII to the extent that it occurs "because of" the plaintiffs sex, Dandan must present evidence from which a factfinder could infer that the reason for his male co-workers' harassment was because he is a man. Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007 (7th Cir. 1999).
In Oncale, plaintiff was a male employee working on an offshore oil well. On several occasions, he was subjected to sex-related, harassing actions by members of an all-male crew. The Supreme Court reversed the Fifth Circuit Court of Appeals and ruled that Title VII's prohibition on discrimination encompassed same-sex discrimination, so long as a plaintiff can meet the statutory requirement and show that the harassment was because of his sex. Oncale, 523 U.S. at 79-80, 118 S.Ct. at 1002. Thus, the court remanded the case so that the plaintiff could show that he was harassed because he was a man.
Oncale discussed some ways that a finder of fact may infer that a legitimate claim for same-sex harassment exists, stating that the inference:
would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] . . . because of . . . sex. Id.
A claim for sexual discrimination will not obtain "merely because words used have sexual content or connotations." Id. Rather, "the critical issue for determining if a plaintiffs Title VII discrimination claim will prevail is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id.
Dandan has not presented facts to the Court which show that he was harassed because of his sex. While the comments he was subjected to are vulgar and offensive, there is no evidence that they were directed at Dandan because he is male. Rather, the only reasonable inference is that the derogatory and bigoted comments inflicted upon Dandan were due to his co-workers' perception of his sexual orientation. Dandan contends that none of his co-workers actually knew his sexual orientation, but only speculated that he is homosexual. Therefore, he argues, if the coworkers do not know his sexual orientation, the verbal abuse can only be attributed to the fact that he is a man. In fact, whether Dandan's co-workers knew or only suspected what his sexual orientation is makes no difference where Title VII is concerned. See, Shermer v. Illinois Dept. of Transportation, 937 F. Supp. 781, 785 (C.D.Ill. 1996) (concluding that discrimination based on sexual orientation, real or perceived, is not actionable under Title VII); disagreed with by Doe v. City of Belleville, Ill., 119 F.3d 563, 74 (1997) ( vacated by City of Belleview v. Doe, 523 U.S. 1001, 118 S.Ct. 1183 (1998); aff'd 171 F.3d 475 (7th Cir. 1999).
Alternatively, Dandan argues that his co-workers' comments were inspired from their disapproval of homosexuality. Thus, Dandan contends, because he does not match-up to his coworkers' expectations of what a man should be or how he should live his life, their comments are directly attributable to his sex. Dandan's argument, however, simply has no precedential underpinning. Dandan does not direct the Court to any support for his argument that Title VII's protection stretches so far to envelop harassment based on a person's sexuality, as it is or as perceived. The comments directed at Dandan do not reflect that his co-workers' bore any hostility against him because he is male. Thus, Dandan has not alleged facts that show that his co-workers' comments constitute discrimination because of sex.
C. Retaliation
It is a violation of Title VII "for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3 (a). To establish a prima facie case, Dandan must show that "(1) he engaged in statutorily protected expression; (2) he suffered an adverse action by [his] employer; and (3) there is a causal link between the protected expression and the adverse action." Dey v. Colt Construction Development Co., 28 F.3d 1446, 1457 (7th Cir. 1994). Once Dandan establishes a prima facie case, the burden of production shifts to Radisson to come forward with a legitimate, non-retaliatory reason for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973); McKenzie v. Illinois Department of Transportation, 92 F.3d 473, 483 (7th Cir. 1996).
The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The only reason Radisson sets forth for granting summary judgment on the retaliation claim is that Dandan failed to satisfy the first prong; that he engaged in statutorily protected expression. Radisson contends that Dandan fails to meet this prong because he incorrectly based his harassment claim on sexual orientation discrimination. However, it is established that "an employee may engage in statutorily protected expression under section 2000e-3(a) even if the challenged practice does not actually violate Title VII." Dey, 28 F.3d at 1457. Dandan's claim for retaliation does not depend on the success of the sexual harassment claim. Instead, "it is sufficient if the plaintiff has a reasonable belief that he is challenging conduct [that violates] Title VII." Id. at 1458 quoting, Holland v. Jefferson Nat'l Life Ins, Co., 883 F.2d 1307, 1314 (7th Cir. 1989).
The Court concludes that Dandan had a reasonable belief that his claim was valid. The critical inquiry in reviewing a retaliation claim "is good faith and reasonableness, not the fact of discrimination." Id. quoting,Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir. 1982). Here, the constant vulgar and offensive language directed at Dandan created a reasonable basis for his allegations. Accordingly, Dandan's claim was in good faith and, therefore, was statutorily protected.
Dandan has satisfied the remaining elements of a retaliation claim. Dandan's two-week suspension for chewing gum (when a normal suspension lasts only 3-5 days) sufficiently alleges an adverse employment action.
Dandan has also shown a causal link between his complaints of harassment and his suspension. The undisputed evidence showed that Dandan was suspended for an unusually long period of time for chewing gum. The evidence suggests that Radisson's human resources department suspected that Dandan was going to file suit based on his co-workers' harassment. A jury could reasonably infer that the length of the suspension was related to Dandan's complaint to the EEOC.
CONCLUSION
For the foregoing reasons, Radisson's motion for summary judgment [16-1] is GRANTED in part and DENIED in part.