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Gunn v. On the Border Acquisitions, LLC

United States District Court, E.D. Pennsylvania

March 28, 2018

CYNTHIA GUNN, Plaintiff,


          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 VII[1]; and (4) negligent retention under state law.

         OTB 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 (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 allegedly 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. Blackmon called plaintiff and said she “wanted to be certain she understood exactly what happened, ” and asked plaintiff to describe the incident again. (JA 0495; JA 0112-13.) Ms. Blackmon also asked if there were any other witnesses to the incident. (JA 0495; JA 0112-13.) Plaintiff identified Ms. Trunzo. (JA 0495.) Blackmon asked if plaintiff had any previous concerns about, or incidents with, Mr. Walker. (JA 0495; JA 0114-15.) Plaintiff responded that Walker was “very moody on [the] grill” but she had no prior problems with him. (JA 0495, JA 0447; JA 0115-16.) Ms. Blackmon advised plaintiff that she would speak with Mr. Walker as part of her investigation, but that due to his leave of absence she would need to wait until he was released to return to work. (JA 0495; JA 0116.) Plaintiff stated, “I want to feel safe and it makes me angry and mad.” (JA 0495.) Ms. Blackmon replied that Mr. Walker would not be permitted to return to work while the investigation was pending. (JA 0495; JA 0116-17.) Ms. Blackmon reiterated OTB's open door policy and assured plaintiff she had done the right thing in reporting the incident. (JA 0495; JA 0116-117.)

         Ms. Blackmon next spoke to plaintiff on March 27, 2015. (JA 0496.) Plaintiff expressed frustration with the investigation and Ms. Blackmon explained that they would be unable to reach a resolution until they had an opportunity to speak with Mr. Walker. (JA 0496.) Ms. Blackmon discussed the benefits of the Employee Assistance Program (“EAP”) and encouraged plaintiff to take advantage of their services. (JA 0496; JA 0118.)

         On April 1, 2015, Ms. Blackmon received notification from the Area Director, Ed Jarvis, that plaintiff resigned. (JA 0496.) Ms. Blackmon called plaintiff to see how she was doing. Plaintiff stated, “I don't feel comfortable here.” (JA 0496.) Ms. Blackmon reminded plaintiff that she had access to the EAP services, which she had yet to utilize. (JA 0496.) Ms. Blackmon also asked what else she could to do help her and plaintiff replied, “You guys have done everything you can do . . . you offered something I have not taken advantage of (EAP).” (JA 0497.)

         During this call, plaintiff also expressed concerns that she would be treated differently. (JA 0497.) Ms. Blackmon assured plaintiff that she was correct in reporting the incident, and reminded her that the investigation was confidential. (JA 0497.) Ms. Blackmon stated that they were working towards a resolution, but advised that it takes time to speak with all those involved and to obtain all the pertinent information. (JA 0497.) Plaintiff asked Ms. Blackmon when she anticipated the investigation would be over, and Ms. Blackmon said she hoped to have a resolution by the end of the week. (JA 0497.) Plaintiff decided not to resign at that time. (JA 0497.) Ms. Blackmon told plaintiff to reach out at any time, and said she would call her on Friday with either an outcome or an update. (JA 0497.)

         As part of Blackmon's investigation, she conducted phone interviews and obtained statements from all potential witnesses. (JA 0498-500; JA 0393-96; JA 0406.) Ms. Blackmon requested a written statement from Ms. Premich and interviewed her over the phone on April 3, 2015. (JA 0393-94; JA 0499.) During this interview, Ms. Premich said that she did not witness the incident, and knew only what plaintiff told her about the incident. (JA 0499; JA 0699.) Also on April 3, 2015, Ms. Blackmon interviewed Mr. Sanders. He explained that he accompanied Mr. Walker to OTB on the date of the incident so that Mr. Walker could submit a doctor's note to management. (JA 0497.) Mr. Sanders did not see Mr. Walker touch plaintiff. (JA 0497-98.) Ms. Blackmon also obtained statements from Ms. Trunzo, Mary Sook and Teresa Larson. (JA 0500; JA 0700-03.) These individuals did not witness the incident.

         On April 3, 2015, Ms. Blackmon contacted plaintiff to update her on the progress of the investigation. (JA 0498; JA 0133.) Ms. Blackmon informed plaintiff that none of the individuals identified by plaintiff witnessed the alleged incident. (JA 0498; JA 0134.) Plaintiff then suggested that Lisandra Saez may have witnessed the incident. (JA 0498; JA 0134.) That same day, Ms. Blackmon interviewed Ms. Saez on the phone. (JA 0500.) Ms. Saez informed Ms. Blackmon that she did not witness the incident, and that her knowledge was based only on what plaintiff told her.

         Ms. Blackmon then interviewed Mr. Walker on April 3, 2015. (JA 0499.) Defendant stated that he exchanged hugs with many Team Members, including plaintiff, who were welcoming him back from his leave of absence. (JA 0499; JA 0735; JA 0779-80.) Mr. Walker denied touching plaintiff's breasts. (JA 0499; JA 0776-77.)

         On April 3, 2015, Ms. Blackmon concluded the investigation. (JA 0438; JA 0501.) She determined that there were no witnesses to the alleged incident, there were no prior complaints about Walker from plaintiff or anyone else, and that plaintiff's allegations could not be corroborated. (JA 501; JA 0391-92; JA 0446.) Ms. Blackmon recommended that Walker be returned to work. (JA 0501; JA 0391-92.)

         Pursuant to OTB's policies and procedures, Ms. Blackmon submitted her recommendation to her immediate supervisor, Jacque Shensky. (JA 0387.) Ms. Shensky agreed with the recommendation. (JA 0403.) The investigation was concluded and on April 3, 2015 the decision was made to return Walker to work. (JA 0414.)

         The final step in the investigation required Ms. Blackmon to speak with plaintiff to discuss the results of the investigation. (JA 0439.) On April 3, 2015, Ms. Blackmon left a voicemail for plaintiff stating that they reached a conclusion in the investigation, and asking plaintiff to contact her any time over the weekend. (JA 0501; JA 0438-41; JA 0136-37.) Plaintiff did not return Ms. Blackmon's call. (JA 0439-40.) In light of the fact that Ms. Blackmon was unable to reach plaintiff, she asked the Area Director to advise Mr. Walker that the investigation was ongoing and that he could not return to work until it was concluded. (JA 0440-41.)

         Ms. Blackmon spoke with plaintiff on April 6, 2015. (JA 0442.) She informed plaintiff that the investigation was concluded and OTB was unable to substantiate her claim against Walker. (JA 0442; JA 0137-38; JA 501.) Ms. Blackmon stated that Mr. Walker would be returning to work and then plaintiff hung up the phone. (JA 0442.) Ms. Blackmon testified that, had plaintiff not ended the call she would have advised plaintiff how OTB intended to ensure that she would ...

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