United States District Court, E.D. Pennsylvania
Timothy R. Rice U.S. Magistrate Judge.
Mark Austin alleges that Defendants Bloomin' Brands, Inc.
and OS Restaurant Services, LLC, as owners of the Bonefish
Grill restaurant in Newtown Square, Pennsylvania
(collectively, “Bonefish”), engaged in sex
discrimination, race discrimination, and retaliation, in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e, et seq. Bonefish seeks summary
motion is granted in part and denied in part. No reasonable
jury could find that the behavior of Austin's co-workers
among themselves, which ranged from sophomoric and childish
to sexually suggestive, crude, and offensive, originated
“because of” Austin's sex or race. A
reasonable jury, however, could find Bonefish retaliated
against Austin by allowing the harassing behavior to
intensify and target Austin because he had complained.
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986).
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
evidence and any inferences from the evidence must be viewed
in the light most favorable to the non-moving party. See
Ray v. Warren, 626 F.2d 170, 173 (3d Cir. 2010). If
reasonable minds could conclude that there are sufficient
facts to support a plaintiff's claims, summary judgment
should be denied. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). It should be granted if
no “reasonable jury could return a verdict for the
nonmoving party, ” based on the evidentiary record.
Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010).
Facts Most Favorable to Austin
began working as a saute cook at Bonefish in April 2015.
Pl.'s Counter-Statement of Facts (doc. 32-3) (“Pl.
C.S.”) ¶ 3; Def. St. of Undisputed Facts (doc.
29-2) (“Def. St.”) ¶ 1. Kevin Rothery was
the managing partner. Pl. C.S. ¶ 5; Def. St. ¶ 3.
Rothery's Joint Venture Partner was Shaina Nestor at the
beginning of Austin's employment, and Michael McMann as
of approximately December 2015. Pl. C.S. ¶ 6-7; Def. St.
¶ 4. Other supervisors were Bill Stellato, Robin Wright,
Felicia Jilek, and Jeff Season. Pl. C.S. ¶ 5; Def. St.
¶ 3. Austin and Darius James were the only
African-Americans working full-time in the
kitchen. Pl. C.S. ¶ 8-9. The other eight
kitchen workers were Hispanic. Id.
company's harassment policy was not regularly provided to
kitchen staff upon hiring. Pl. C.S. at ¶¶ 15-19.
Immediately upon commencing his employment, Austin witnessed
behavior by the Hispanic kitchen staff that violated
Bonefish's sexual harassment policy. Id. ¶
21. The kitchen staff would rub, pinch, or smack one
another's backsides as they moved past one another,
massage one another's shoulders, and put their arms
around one another. Austin Dep. at 85-86. Austin testified
there “wasn't a day [he] worked” at Bonefish
that the touching did not happen. Id. at 99.
were also multiple communication issues between Austin and
his Hispanic co-workers, who would refuse to tell him in
English which food he needed to plate, and ignore his
English-language requests for prep material. Id. at
79-81. Austin regularly reported the communication issues to
Rothery, from the time he began working in April 2015 through
September 2015, without resolution or improvement. Austin
Dep. at 86.
summer of 2015, Austin and James verbally complained to
Rothery about their colleagues' inappropriate touching,
alleging that they felt sexually harassed. Pl. C.S. ¶
42; Austin Dep. at 115, 130; James Dep. at 25, 37. Rothery
told Austin he would “talk to the guys” about the
harassment. Austin Dep. at 130. After Austin's complaint,
his co-workers' behavior worsened and they began to
target him. Pl. C.S. ¶ 46. His co-workers would
“look at [Austin] and smile” while, for example,
putting their hands into one another's pants. Austin Dep.
at 108. Austin next made a written complaint in September
2015, and repeated his complaints six times to various
managers. Id. He found, however, that “[t]he
more [he] complained, the more vulgar [the kitchen staff]
would get.” Id.
sexual touching became even more frequent. Austin Dep. at
256-57. Austin estimated his colleagues would mimic oral sex
with one another twice per week, and anal sex
“regularly.” Id. at 103-04. One
co-worker would put his hands into another's pants
“fairly often, ” and another would do the same
“weekly, ” id. at 105, and they would
all “grab” or “touch” one another
every day, id. at 110. He explained how his
co-workers taunted and targeted him: “while [the
co-worker] would have somebody's hip and be thrusting
them, he'll be looking at me smiling while we're
working. . . . it's like they're waiting for me to
notice it.” Id. at 113. Rothery was present
while the employees mimicked sexual acts and regularly
witnessed the objectionable activity. Pl. C.S. ¶ 29-30.
also cited two incidents he believed demonstrated
Rothery's racial bias. Austin Dep. at 121. Once, Rothery
asked James to impersonate an African-American customer who
was calling the hostess to complain about being seated in the
corner. Pl. C.S. ¶¶ 37-39. Rothery laughed while
the call was made (the “James impersonation
call”). Id. ¶¶ 40-41. Another time,
Rothery joked about being surprised that a Caucasian
co-worker had African-American friends (the “joke about
interracial friendship”). Austin Dep. at 121.
September 2015, Austin wrote a letter to Rothery complaining
about a number of issues, including the kitchen staff's
inappropriate “sexual games, ” and suggested that
Rothery condoned the conduct as shown by the James
impersonation call incident. Pl. C.S., Def. C.S., ¶ 50;
Ex. 3 at ¶ 27. Rothery did not appropriately follow up
on Austin's written complaint. Pl. C.S. ¶ 53.
Rothery was not disciplined for this failure until March 29,
2016, the same day Austin resigned. Ex. 20 to Pl. Resp.
October or November 2015, one of the kitchen staff used a
kitchen tong to pinch James's nipple. Pl. C.S. ¶ 58;
Austin Dep. 101-02. Austin complained to Rothery, who failed
to appropriately address the incident. Pl. C.S. at
¶¶ 62-63; Austin Dep. at 159. Instead, Rothery
placed the employee who had pinched James next to Austin in
the kitchen and denied Austin's request for a schedule
change. Pl. C.S. at ¶ 66. Located next to
“the biggest aggressor in the store as far as
harassment goes, ” Austin began complaining to Rothery
daily about his co-workers' sexual harassment. Austin
Dep. at 256. He also told Rothery his fear that, now that he
was in even closer proximity - two feet away - he would be
touched inappropriately. Austin Dep. at 256-57. When he would
bend over and a colleague would “brush past” his
rear, Austin “never knew how to take it.”
Id. at 257.
also complained to the other managers. Pl. C.S. at ¶ 71.
One manager, Robin Wright, could see that the continued
harassment was affecting Austin, and asked him repeatedly
what was wrong. Austin Dep. at 161. Austin finally explained
to Wright, who did not document the conversation until three
weeks after it had taken place, that he felt harassed,
stressed, and frustrated by his colleagues' behavior.
Id. at 161-63. Wright laughed. Id. at
162. Austin's complaint to Wright was never
investigated. Pl. C.S. at ¶¶ 74-75.
March 19, 2016, Rothery warned Austin to “get
engaged” or go home. Pl. C.S., Def. C.S. at ¶ 81.
Austin went home. Id.
March 20, 2016, Austin asked to speak with McMann,
Rothery's superior. Id. at ¶ 82. Austin and
McMann met the next day and Austin complained about the
alleged touching and sexual pantomime. Id. at ¶
83. This was the first time McMann was made aware of
Austin's complaints. Id. at ¶ 86. McMann
investigated the complaint and advised Austin that many of
his co-workers had admitted their behavior. Austin Dep. at
168. On March 22, 2016, Austin returned to Bonefish and
worked a shift during which McMann worked as manager. Austin
Dep. at 168-69.
Austin's next shift, on March 24, 2016, one of his
co-workers put his hands inside another co-worker's
pants. Austin Dep. at 169. Austin left his post in the
kitchen and reported the behavior to Rothery, who reprimanded
the employees and advised McMann. Austin Dep. at 169. At
McMann's direction, Rothery asked Austin to write a