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Austin v. Bloomin' Brands, Inc.

United States District Court, E.D. Pennsylvania

August 30, 2017

MARK AUSTIN, Plaintiff,
BLOOMIN' BRANDS, INC., et al., Defendants.


          Timothy R. Rice U.S. Magistrate Judge.

         Plaintiff 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 judgment.

         Bonefish's 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).

         I. Legal Standard

         Summary 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).

         II. Facts Most Favorable to Austin

         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.[1] Pl. C.S. ¶ 8-9. The other eight kitchen workers were Hispanic. Id.

         The 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.

         There 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.

         In the 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.

         The 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.

         Austin 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.

         In 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.

         In 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.[2] 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.

         Austin 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.[3] Id. at 162. Austin's complaint to Wright was never investigated.[4] Pl. C.S. at ¶¶ 74-75.

         On March 19, 2016, Rothery warned Austin to “get engaged” or go home. Pl. C.S., Def. C.S. at ¶ 81. Austin went home. Id.

         On 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.

         During 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 ...

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