Turner v. The Saloon, Ltd.

• Decision Date: 08 February 2010
• Docket Number: No. 07-2449.,07-2449.
• Citation: 595 F.3d 679
• Parties: Paul D. TURNER, Plaintiff-Appellant, v. THE SALOON, LTD., Cheryl Gilberg, William Bronner, and Mark Braver, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

595 F.3d 679

Paul D. TURNER, Plaintiff-Appellant, v. THE SALOON, LTD., Cheryl Gilberg, William Bronner, and Mark Braver, Defendants-Appellees.

No. 07-2449.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2009.

Decided February 8, 2010.

Carol C. Babbitt, Attorney (argued), Chicago, IL, for Plaintiff-Appellant.

James V. Daffada, Attorney (argued), Karacic & Daffada, Wilmette, IL, for Defendants-Appellees.

Before MANION, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Paul Turner worked as a waiter for The Saloon, Ltd. ("The Saloon"), a Chicago steakhouse, and claims he was the victim of several forms of employment discrimination. Turner had a months-long sexual relationship with his supervisor and claims that when he ended it, she persistently sexually harassed him. He also claims The Saloon discriminated against him on the basis of a disability; he suffers from psoriasis and says that the restaurant failed to accommodate his condition. Turner complained to restaurant management about the sexual harassment and filed an EEOC charge about the disability discrimination. He was later fired for leaving the restaurant in the middle of his shift.

Turner then sued The Saloon and several of its managers alleging discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). Turner also alleged that The Saloon owed him unpaid overtime under the Fair Labor Standards Act ("FLSA") and Illinois' Wage Payment and Collection Act ("Wage Payment Act"). The district court granted summary judgment for the defendants, and Turner appealed.

We affirm in part and reverse in part. The district court properly rejected Turner's claims, with one exception. The district court dismissed the hostile-workplace claim after excluding most of the alleged instances of harassment as time-barred. This was contrary to the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 120, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), which held that in a hostile-workplace claim, acts of harassment falling outside Title VII's statute of limitations may be considered as long as some act of harassment occurred within the limitations period. When all of the supervisor's alleged acts of harassment are considered, Turner has raised a material issue of fact regarding whether his work environment was objectively and subjectively hostile. But Turner is not necessarily entitled to a trial; he must also establish a basis for The Saloon to be liable. We remand for the district court's consideration of that issue and any further proceedings that may be required on Turner's hostile-workplace claim.

I. Background

Paul Turner worked as a waiter at The Saloon from 1999 to 2004, but the events underlying his employment-discrimination claims occurred between 2002 and 2004. During this period, William Bronner was The Saloon's "owner's representative," and in that capacity was responsible for creating and developing the restaurant's operating procedures and reporting directly to its owners, Sidney and Cheryl Gilberg. Mark Braver was The Saloon's general manager; he reported to Bronner and oversaw the restaurant's day-to-day operations. Denise "Dixie" Lake and Bret Dresnik were assistant managers, and they reported directly to Braver. Braver, Lake, and Dresnik supervised the remaining staff, which included Turner.

Turner's employment history at The Saloon was mixed. He was one of the restaurant's highest grossing waiters, and many regular customers would specifically request him to serve their tables. On the other hand, Turner's personnel file was littered with citations, which seemed to accumulate at a faster rate in 2004.

In 2002 Turner began a sexual relationship with Denise Lake, one of his supervisors. It lasted for about nine months, and Turner claims to have ended it in November of 2002.¹ Turner contends that Lake retaliated against him for ending their relationship by altering his table assignments, writing him up for unwarranted discipline, and sexually harassing him. He describes at least five specific instances of overt sexual harassment. In June 2003 a customer spilled champagne on Turner's pants, and when he went to the bar area to find towels to dry himself off, Lake followed him there. She put her hands inside his pockets, grabbed his penis, and said, "You sure are soaked." In July 2003 Lake pressed her chest against him and asked, "Don't you miss me?" On New Year's Eve in 2003, Lake asked Turner to kiss her. In January 2004 Lake approached Turner from behind and grabbed his buttocks. Finally, in August 2004 Lake saw Turner with his clothes off while he was changing into his work uniform and told him that she missed seeing him naked.

Turner says Lake's advances were unwanted and he tried to get her to stop, but his protests only prompted her to retaliate against him. She reprimanded him in front of other employees, singled him out for undeserved disciplinary write-ups, and assigned him to less profitable tables.

In July 2003, after the second incident of harassment, Turner approached Braver to complain about Lake's conduct. Turner claims Braver discouraged his complaints and took no remedial action.² In the spring of 2004, Turner spoke to Bronner about Lake's harassment and was told that The Saloon would investigate it. Bronner and Braver testified in their depositions that they met with Lake and told her that The Saloon would not tolerate any type of sexual harassment. Turner contends this response was insufficient.

Turner also ran into difficulty with restaurant management over his use of the employee common area to change into his work uniform. Turner has psoriasis, a skin condition that affects his genital area, elbows, and knees. He claims that wearing underwear increases his groin sweating, which exacerbates his psoriasis-related irritation. So he does not wear underwear. As a consequence, Turner frequently exposed himself when changing into his work uniform in the employee common area. During the latter half of 2004, a female employee complained about Turner's indecent exposures. Braver instituted a new policy that any employee who exposes himself while changing must change in a restroom.

Turner thought the men's bathroom was vile and claimed this new policy uniquely targeted him. On October 4, 2004, he filed a charge with the Illinois Department of Human Rights alleging that The Saloon discriminated against him because of his psoriasis. At the same time, Turner tried to work with Braver to reach some compromise. He proposed that The Saloon install a curtain in the common area, creating a private area for him to change. Braver said he would take this idea up with Bronner, but he later simply rejected the proposal. Turner next suggested that he be permitted to change in a basement room that had no door. Braver said he would think about it. Without waiting for Braver's permission, Turner started using the basement room as a changing area. On October 7 Braver caught Turner naked while changing in the basement room. He issued Turner a written warning and suspended him for a week. When Turner returned from his suspension, Braver told him he could change in the restroom of a hotel that was located in the same building as The Saloon; Turner rejected this suggestion.³ On October 20, 2004, Turner filed another charge of disability-related discrimination, this time with the EEOC.

On December 15, 2004, in the middle of his shift, Turner left the restaurant without notifying his supervisors and ran an errand at his bank. No other waiter was on duty at the time, and customers came in while Turner was absent. When Turner returned, Braver fired him. Turner later claimed he had obtained the hostess's approval to leave. He also contended his dismissal was really motivated by his allegations of sex- and disability-related harassment, not his unexcused absence. Braver says he discharged Turner based on his disciplinary record and for leaving the restaurant without permission in the middle of his shift.

Turner sued The Saloon and several of its managers alleging employment discrimination because of his sex and disability in violation of Title VII and the ADA.⁴ He also asserted retaliation claims alleging he was dismissed for complaining about The Saloon's sex and disability discrimination. Finally, he alleged a claim for unpaid overtime under the FLSA and the state Wage Payment Act. The Saloon moved for summary judgment, and Turner filed a cross-motion asking the court to preclude The Saloon from asserting affirmative defenses to the sexual-harassment count. The district court granted The Saloon's motion on all counts and denied Turner's motion as moot. This appeal followed.

II. Discussion

We review the district court's grant of summary judgment de novo. Chaklos v. Stevens, 560 F.3d 705, 710 (7th Cir.2009). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). We construe all facts and reasonable inferences in the light most favorable to Turner, the nonmoving party. See Mobley v. Allstate Ins. Co., 531 F.3d 539, 545 (7th Cir.2008).

A. Title VII Sexual-Harassment Claim

We begin with Turner's claim that The Saloon is liable for Lake's sexual harassment. Title VII broadly prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). Title VII generally covers two types of employment discrimination: so-called discrete acts of discrimination, such as "termination, failure to promote, denial of transfer, or refusal to hire," Morgan, 536 U.S. at 114, 122 S.Ct....