805 F.2d 644 (6th Cir. 1986), 85-3587, Highlander v. K.F.C. Nat. Management Co.

Docket Nº:85-3587.
Citation:805 F.2d 644
Party Name:27 Wage & Hour Cas. (BN 1524, Evelyn M. HIGHLANDER, Plaintiff-Appellant, v. K.F.C. NATIONAL MANAGEMENT CO., d/b/a Zantigo; Heublin Corporation; Zantigo Mexican Restaurant, Defendants-Appellees.
Case Date:November 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 644

805 F.2d 644 (6th Cir. 1986)

27 Wage & Hour Cas. (BN 1524,

Evelyn M. HIGHLANDER, Plaintiff-Appellant,

v.

K.F.C. NATIONAL MANAGEMENT CO., d/b/a Zantigo; Heublin

Corporation; Zantigo Mexican Restaurant,

Defendants-Appellees.

No. 85-3587.

United States Court of Appeals, Sixth Circuit

November 18, 1986

Argued April 18, 1986.

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Paul H. Tobias, Tobias & Kraus, Cincinnati, Ohio, Susan J. Hauck (argued), for plaintiff-appellant.

James K.L. Lawrence, Frost & Jacobs, Cincinnati, Ohio, Samuel H. Elkin (argued), KFC Management Co., Louisville, Ky., for defendants-appellees.

Before KRUPANSKY and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

Plaintiff-appellant Evelyn Highlander (Highlander) appealed from two separate final orders of the district court entering judgment for defendant-appellee Zantigo Mexican Restaurant (Zantigo) in this action initiated pursuant to the Fair Labor Standards Act, 29 U.S.C. Sec. 201 et seq., and Title VII, 42 U.S.C. Sec. 2000e et seq.

In September of 1981, Highlander was hired by Zantigo as an assistant manager and met with Pauline Howell (Howell), a Zantigo District Training Instructor, who explained to Highlander the fluctuating work week method of overtime compensation authorized under 29 C.F.R. Sec. 778.114 by referring to a printed form which incorporated detailed examples of the procedure

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by which weekly overtime compensation was calculated. She further advised Highlander that her weekly compensation would be determined by applying that method of calculation. Highlander executed a written acknowledgement that she understood the procedure that would be used in computing her weekly compensation.

Highlander was initially assigned to a six week training program which she completed in November 1981. Thereafter, she was designated an assistant manager at the Zantigo outlet located at North Bend and Colerain Streets in Cincinnati, Ohio. Phillip Altieri (Altieri), a North Bend outlet co-manager, was Highlander's immediate supervisor.

On or about February 1, 1982, Ron Kosisko (Kosisko), a Zantigo district training manager who had no supervisory authority over Highlander, approached Highlander and co-employee Ginger Morris (Morris) and commented about their chic company uniforms. Kosisko, who was inebriated at the time, touched Highlander's legs and buttocks. He also touched Highlander's name tag, which was displayed on the tunic over her breast. After patting Morris' buttocks, Kosisko stated that Highlander and Morris must have been wearing "Underalls."

The next day, Highlander and Morris reported the incident to Greg Van Winkle (Van Winkle), the other co-manager at the North Bend establishment. When Van Winkle informed them that he intended to immediately report the incident to management, Highlander stressed that she was not desirous of making an issue of the incident or raising "a big stink about it."

Pursuant to Highlander's request, the company transferred her to a newly opened outlet in Florence, Kentucky which was geographically closer to her home. Altieri had been selected to act as manager at the Florence location. Subsequent to her transfer, Highlander reported the Kosisko incident to Altieri. He immediately notified the area manager Abe Hatem (Hatem) and human resources manager Sandy Allgeier (Allgeier) about the incident. Allgeier promptly conducted an investigation of the accusations.

In an interview with Allgeier, Highlander stated that she did not dislike Kosisko and was not desirous of making an issue of the incident because she did not "think it was that big of a deal." When confronted, Kosisko denied Highlander's charge. Allgeier was unable to confirm Highlander's allegations that Kosisko had touched her breast and concluded that the circumstances of the Kosisko event did not constitute a case of sexual harassment. Nevertheless, the company ordered Kosisko to sign an advisory notice acknowledging his awareness of Zantigo's strict policy against sexual harassment.

In mid-February of 1982, Highlander confronted Altieri and "asked him out to go have a business drink if you want to call it that" to discuss her promotion possibilities. Altieri declined the invitation, but agreed to discuss the subject with Highlander at the Florence business location. Highlander asserted that, during their conversation, Altieri placed his arm around her and stated that if she was interested in becoming a co-manager, "there is a motel across the street." When confronted by the accusation some three months later Altieri categorically denied the charges.

Although Highlander did not herself report the Altieri meeting until May of 1982, her husband mentioned the Altieri statement when he telephoned Hatem in early March to complain about the company's resolution of the Kosisko incident. Hatem explained that it would be inappropriate...

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