218 F.3d 798 (7th Cir. 2000), 98-2386, Hostetler v. Quality Dining

Docket Nº:98-2386
Citation:218 F.3d 798
Party Name:ANN M. HOSTETLER, Plaintiff-Appellant, v. QUALITY DINING, INC., Defendant-Appellee.
Case Date:June 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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218 F.3d 798 (7th Cir. 2000)

ANN M. HOSTETLER, Plaintiff-Appellant,


QUALITY DINING, INC., Defendant-Appellee.

No. 98-2386

In the United States Court of Appeals, For the Seventh Circuit

June 29, 2000

Argued January 7, 1999

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 97 C 160--Robin D. Pierce, Magistrate Judge.

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Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Ann Hostetler alleges that a fellow supervisory employee at a South Bend, Indiana Burger King grabbed her face one day at work and stuck his tongue down her throat. On the following day, he tried to kiss her again and when she struggled to evade him, he began to unfasten her brassiere, threatening to "undo it all the way." When Hostetler reported these incidents to her superiors, her district manager allegedly remarked that he dealt with his problems by getting rid of them. Days later, Hostetler was transferred to a distant Burger King location. She later filed this sex discrimination suit against her employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e-2(a)(1), contending that she had endured a hostile working environment as a result of the alleged harassment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405 (1986). The district court granted summary judgment to the defendant, reasoning that the harassment Hostetler describes was not severe, see id. at 67, 106 S.Ct. at 2405; Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993), and that, in

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any event, her employer absolved itself of liability by responding to her complaint with steps reasonably designed to preclude further harassment, see, e.g., Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998), cert. denied, 120 S.Ct. 450 (1999). Hostetler v. Quality Dining, Inc., 1998 WL 456436 (N.D. Ind. April 23). Although a finder of fact might reach the same conclusions after a trial, we do not believe it appropriate to hold, as a matter of law, that the alleged harassment was not severe or that her employer's response was non-negligent. We therefore reverse the grant of summary judgment.


The facts that follow represent a reading of the record that is favorable to Hostetler. We have noted some of the factual matters that are in dispute, but as this case was resolved against Hostetler on summary judgment, we are of course obligated to credit her version of events over the defendant's. E.g., Valance v. Wisel, 110 F.3d 1269, 1276 (7th Cir. 1997).

Quality Dining, Inc. ("Quality"), through its subsidiary Bravokilo, Inc., owns some twenty-four Burger King restaurants in Northern Indiana. Hostetler began work for Quality in 1993 as a managerial employee. As a supervisor, Hostetler was subject to transfer on an as needed basis among the various restaurants that Quality owned, and over the next several years, she worked at a number of different Burger King stores in South Bend and Mishawaka, Indiana.

In June of 1996, Hostetler was working as a first assistant supervisor at the Burger King on Ireland Road in South Bend. As a first assistant, Hostetler reported to both the store and district managers. Kim Ridenour was the store manager at that time. Jim Kochan was the district manager, and in that capacity looked after all of the stores in South Bend and Mishawaka.

Hostetler asserts that she was at work on June 3, using the computer in the restaurant's cash booth, when Tim Payton, a second assistant supervisor, grabbed her face and "stuck his tongue down [her] throat." Hostetler Dep. 44. She pulled away from him, gathered her belongings, and left the store at once, although her shift was not yet complete. She made no report of the incident to Ridenour at that time.

On the following day, Hostetler was again doing some work on the computer in the restaurant's office. Her back was to the office door, and as she was preoccupied with the task at hand, she did not turn when Payton entered the room. He came up from behind her, took her face in his hands, and turned it toward him. Thinking that he was about to kiss her again, Hostetler bent over and placed her head between her knees. Payton then placed his hands on her back, grasped her brassiere, and began to unfasten it. Hostetler told him to take his hands off her, which prompted him to laugh and say that "he would undo it all the way." Hostetler Dep. 48. Payton managed to unfasten four of the five snaps on Hostetler's bra before Sabrina Ludwig, another store employee, walked into the office. Payton left the area abruptly.

One other episode requires mention. Either before the incident of June 3 or after the incident of June 4--but either way during the same week as these two incidents--Payton approached Hostetler as she was serving customers at the counter and told her, in crude terms, that he could perform oral sex on her so effectively that "[she] would do cartwheels." Hostetler Dep. 49.

After the June 4 incident, Hostetler decided to report the harassment to her superiors. The ensuing chronology is in some dispute. Hostetler, Ridenour, and Kochan have all given accounts that differ in certain respects. Again, as this case comes to us on summary judgment, we of

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course are compelled to credit Hostetler's recitation of events.

Hostetler telephoned Ridenour on June 4 and reported the harassment. Hostetler told Ridenour that she "didn't think [Payton] needed to be fired, he just needed to be talked to." Hostetler Dep. 62. Ridenour said that she would bring the matter to Kochan's attention the next day when she met with him. Hostetler saw Ridenour the following day and asked how the discussion had gone, but Ridenour said that she had forgotten to mention the harassment. Ridenour again promised to speak with Kochan, but when Hostetler followed up with her late in the day on June 6, she had still not done so. At that point, Hostetler opted to leave Kochan a voice message. In that message, which Quality later transcribed, Hostetler detailed the harassment that had occurred on June 3 and 4 and requested Kochan to "take care of it."1

Kochan was on vacation from June 6 through June 9,2 but he met with Hostetler and Ridenour regarding the reported harassment on June 10. As Hostetler recounts the meeting, Kochan accused her of lying and noted that Payton had denied her allegations. Kochan asked Hostetler, "Do you know what I do when I have problems, Ann?" When Hostetler said she did not, Kochan told her, "I get rid of them." Hostetler Dep. 67. Hostetler took Kochan to mean that he might transfer her, and she pleaded with him not to do so; Kochan said he would think about it. Then, after noting that he had a copy of Hostetler's voice message, Kochan asked Ridenour whether she had any problems with Hostetler's work performance. Ridenour expressed concern over the fact that Hostetler had left work early on June 3 (after Payton had kissed her).3

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On June 12, Quality transferred Hostetler to a Burger King in Goshen, Indiana. According to Kochan, the district manager for the Goshen area, T. K. Brenneman, had asked him whether he could spare an employee for a store in his district that was managerially short-staffed. Kochan avers that he thought of Hostetler, because the Ireland Road store was "heavy" with supervisory employees and because he knew that Hostetler and Ridenour had a personality conflict. Kochan Dep. 34, 36. Brenneman had also worked with Hostetler before and purportedly was pleased at the prospect of having her join his staff. Such transfers are commonplace at Quality, and Kochan asserts that the move was not intended to punish her. Hostetler suspected otherwise, in light of Kochan's prior remark about getting rid of his problems.4

The transfer to Goshen proved to be a hardship for Hostetler. The commute to and from the Goshen store consumed two and one-half hours of Hostetler's day. At the outset, Hostetler was assigned to close the store nearly every evening, which meant that she worked until 4:00 a.m. This made it difficult for Hostetler, once she returned home, to rise with her daughters in the morning. She would also be assigned to work fourteen to sixteen-hour days and then be scheduled to return to the store after only six hours off.

Meanwhile, Hostetler's transfer left the Ireland Road Burger King in South Bend

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with no first assistant supervisors. None of the second assistants was qualified for promotion to first assistant, so Hostetler's position was left unfilled. This posed no problem for the store, Ridenour testified, because second assistants could perform nearly all functions that first assistants could. One exception was that only a first assistant could manage a store without supervision from the store manager. Thus, to the extent that Ridenour permitted second assistants to run the store in her absence, she may have done so in violation of Quality's rules.

After six weeks at the Goshen store, Hostetler asked for another assignment. Hostetler spoke with Jerry Fitzpatrick, Kochan's superior, and complained that the company had sent her to Goshen as punishment for complaining about Payton. Fitzpatrick denied her assertion:

I don't care what happened between you and Mr. Payton. What happened between you and Mr. Payton, happened between you and Mr. Payton. All I care about is resolving our business relationship so that you can be happy and I can be happy and my business can be productive.

Hostetler Dep. 84-85.5 Fitzpatrick also emphasized that Hostetler was a valued employee:

[Y]ou didn't get transferred because of anything that you did wrong, Ann. You got transferred because we need a good player. You're one of our best players. You've got a future with our company.


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