Siffuentes, Solis talked to Hernandez, While Hernandez did not
do anything as drastic as in the 2001 incident, he did on another
occasion brush up against her which made her feel uncomfortable.
She again complained and Solis subsequently fired him as a result
of this behavior. Schaller, the harasser in 2002, was called
into a meeting with Solis and Loughman where he was required to
apologize and shortly thereafter he was transferred to a
different store.

In Ellerth and Faragher the Supreme Court held that
employers may defend against claims of sexual harassment by co-
workers (as opposed to supervisory personnel) by exercising
reasonable care to discover and rectify promptly sexual harassing
behavior. Durkin v. City of Chicago, 341 F.3d 606, 612 (7th Cir.
2003). If the employer has an effective grievance mechanism to
seek redress for harassment, the employer will not be considered
negligent and will have no liability. Gentry v, Export Packaging
Co., 238 F.3d 942, 847 (7th Cir. 1999). In this case the
evidence shows that Malnati’s had a written sex harassment policy
which instructed employees, such as plaintiff, to complain to

ice, The

their supervisor, or, if desired, Lo the corporate of
evidence further shows that plaintiff did not call the corporate
office or any of the female supervisors and was apparently
somewhat reluctant to complain, but elected to complain first to
fellow employees and only later to a supervisor, Solis. In at

-4-



male and one of the most junior managers, Malnati’s further
claims that on the three specific occasions cited by plaintiff

Solis did in fact conduct an investigation and verbally warned
the offending employees that if they did anything further to
plaintiff they would be Fired. Ruellas did not bother her again,
Hector Hernandez, was fired as a result of additional harassing
conduct toward plaintiff, and Schaller was transferred to another
restaurant. Thus, Malnati’s contends that it is entitled to the
affirmative defense provided by the cases of Burlington

Industries v. Ellerth, $24 U.S. 742 (1998) and Faragher v. City

By

of Boca Raton, 524 U.S. 775 (1998).

Plaintiff fails to discuss the impact of #ilierth and
Faragher on her case, but does allege in her brief that Malnati’s
ignored her complaints, failed to conduct investigations, and
refused to discipline the offending employees. However, in her
deposition, which is an exhibit, she testified to the contrary:
that after she complained to Solis and other co-employees
regarding each of the three incidents the offending people were
talked to and, with one exception did not bother her again. She
specifically testified in her deposition that Martin Ruellas was
talked to by Solis and threatened with termination. She did not
have any trouble with him again. In fact, she said that Ruelias
did not speak to her for at least a year after the incident.

After she complained about the incident with Hernandez and

-3-



least two of the three occasions the supervisor Solis first heard
about her claims of harassment from the co-employees to whom she
complained. In each of the three incidents, her supervisor
conducted an investigation of the incident by speaking to the
offending employee. In one instance after the employee was
threatened with being fired if the conduct occurred again
(Ruellas}, he did not bother her again. In fact, plaintittf
testified that it was about one year later before Ruellas would
even speak to her at all. The second incident lead to the firing
of Hernandez because he repeated the harassing behavior, and the
third incident (Schaller) led to an apology and his transfer to
another Malnati’s store. Thus, it is apparent that Malnati’s not
only had a sexual harassment policy in place but had an effective
one. This is all that is required to avoid liability for co-
employee harassment. See Durkin, id.

Plaintiff also complained about a variety of off hand
comments that were made to her and in her presence during her
employment, such as “do you have a boy friend?”, “will you date
me?” and the like, which she claims made her feel uneasy. The
evidence does not disclose that she complained to her supervisor
about any specific incident other than the three discussed above.
The evidence does show that her supervisor did advise her that
many of her co-employees were of Hispanic background and were

products of a different culture and she should avoid taking any

- 5


Site Bs Fst
of United a

Naine of Judue Hatry
or Magistrate Jude

$s District Court, Northern D ctof Wlinois

D Leinenweber Sitting Judge if Orher
: than Assigned Judge

CASE NUMBER 02 C 7899 DATE 1/29/2004
€ Kathleen N. Loughman vs. Malnati Organization, Inc..

TITLE

[lithe following bux (a) indivate he party filing the mation. eg. phrint Ml defendant, 3a) pary plaingil and (hy state beteAly the
of the mation being presented.]

MOTION:

DOCKET ENTRY:

ay ag Filed motion of [ use listing in “Motion” box above.]

(2) oO Briel in support of motion due

Q) u Answer brig! to motion due . Reply to answer brief duc

(4) if Ruling/Hearing on set for __

(5) rl Slams hearing[held/coutinued to] [set tor/re-set for] on __ set for at

(6) Q Pretrial conference[held/cantinued to] [set for/re-set for}on set For

{7) | Trial[sel for/re-sel for}on at

(8) oO [Beneh/lury trial] [Hearing] held/continued to al

(9) Li This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to|

CeRera(m) Cl Local Rute 41.) OFROP4(ay1) OO FRCP41(a)(2).

qo) [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Motion
for Summary judgment is granted,

(1) if [For further detail see order attached to the original minute order,]

No notices requires! advised in apen eourt | Document
4 Number

Nb notiges equine
ui usher of tariees

SAN 3.0 7004 §

Notices mailed by js s shall

Nobfied counsel by letephone

oY | Docketing Wo mail notices

¥ | Mail AQ a30 fon, . . No. logy iil a5

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actions that might tend to mislead them such as flirting or
loitering in the kitchen where many of them worked. While Lhis
advice does smack a little of “blame the victim,” nevertheless
the comments were not such as to constitute illegal harassment.
Scott v, Sears, Roebuck & Co., 798 F.2d 210, 211-214 (7th Cir.
1986); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (/th
Cir. 1993),
CONCLUSION
For the reasons stated above, thgHlot on for Summary

Judgment of the Defendant is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States Districk Court



IN THE UNITED STATES DISTRICT COURT -
FOR THE NORTHERN DISTRICT OF ILLINOIS )

EASTERN DIVISION § 2004
iretic RD |
LS. Dig Ricr cok
KATHLEEN N, LOUGHMAN,
Plaintiff, Case No. 02 C 7899
v. Hon. Harry D. Leinanweber

MALNATI ORGANIZATION, INC.,
d/b/a LOU MALNATI'S PIZZERIA,

Defendant.

MEMORANDUM OPINION AND ORDER

The plaintiff, Kathleen Loughman (hereinafter “Loughman”),
has brought this suit against her former employer, Lou Malnati’s
Pizzeria (hereinafter, “Malnati’s”)}), alleging that she was the
subject of sexual harassment by co-employees. Specifically she
complains about three incidents that occurred between November
2000 and August 2002.

The first alleged incident occurred in November 2000, when
a co-employee, Martin Ruellas, put his arm around her, pushed her
into a darkened room, and tried to kiss her. She escaped from
his grasp but was again stopped by Ruellas who pushed her against
a wall. He continued to grab and hold her as she tried to escape
by running up a set of stairs.

The second alleged incident occurred in the fall of 2001

when co-employees, Guillermo Siffuentes and Hector Hernandez,

Q>°


followed her into the cooler. The lights were turned off,
Hernandez grabbed her breasts and tried to put a hand down her
pants. She screamed for help, tried to push Hernandez off and
hit. Siffuentes, causing him to fall against the door, which
opened allowing her to escape.

The third alleged incident occurred on August 28, 2002, when
a delivery boy, Tom Schaller, approached her from the rear, ran
his hands through her hair, and put a hand up her shirt and
wiggled his fingers on her stomach. He then giggled and ran
away.

Plaintiff contends that she complained to her supervisor,
Jim Solis (“Solis”), about all three incidents but he did not
conduct an investigation, refused to discipline the offending co-
workers or change their shifts so she would not have to work with
those who sexually harassed her, and otherwise did nothing to
remedy her complaints.

Malnati’s, on the other hand contends that at all times it
had in place a sexual harassment policy that was publicized in
the employees’ handbook, a copy of which plaintiff received at
the time of her first employment with Malnati’s. Under Malnati’s
policy an employee has the option of reporting harassment to the
corporate office via a telephone number provided in the handbook,
or directly to any of three female managers. Plaintiff, nowever,

chose to report the acts of harassment to Jim Solis who was a