Jury to decide Steak ‘n Shake’s liability for coworkers’ harassment of 16-year-old female server
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Wednesday, August 28, 2019

Jury to decide Steak ‘n Shake’s liability for coworkers’ harassment of 16-year-old female server

By Marjorie Johnson, J.D.

The employee said she complained about her male coworker’s daily sexual remarks—both to her manager and by calling the company hotline—before she asked to be taken off the schedule, but the company and manager claimed she didn’t complain until after she quit.

Steak n Shake is headed to trial on a 16-year-old employee’s Title VII hostile work environment and constructive discharge claims, in which she alleged her supervisor disregarded her complaints of sexually harassing behavior by male coworkers over a period of months and then deemed her as having resigned when she asked to be taken off the schedule rather than ensuring that she could work free of harassment pending an investigation. Triable issues existed surrounding the timing and extent of her alleged complaints that would need to be resolved by a jury, held a federal district court in Ohio, denying her employer’s motion for summary judgment. Her retaliation claim failed, however (Corbin v. Steak n Shake, Inc., August 21, 2019, Graham, J.).

Ongoing sexual remarks. In July 2015, the employee began working as a server at a Steak n Shake restaurant. She was hired by the service manager but didn’t regularly interact with him since he worked weekday shifts and she mostly worked on Friday nights and weekends. Throughout her eight-month tenure, two male coworkers purportedly made frequent sex-based comments to her, including remarks about her butt and breasts. After they learned she had an African-American boyfriend, they referred to their pants as "black from the waist down" and asked if this gave them a chance with her. One also allegedly "smacked her butt" a few times. The racial comments and smacking stopped after she threatened to tell her boyfriend, but the sexual comments continued.

Reports harassment. The employee claimed that sometime in March 2016, she reported the harassment to the service manager after she overheard one of the coworkers say, "Isn’t that a nice view?" as she was picking up cardboard. This prompted her to complain about the coworkers’ sexual remarks, but the manager purportedly replied that she "had no proof." At her request, he gave her the number for the corporate hotline for reporting harassment, which she called that day or the next. However, Steak n Shake claimed it had no record that she called the hotline and the manager denied that she reported the alleged harassment to him.

Asks to be taken off schedule. In mid-March, she asked to be taken off the work schedule and placed on "pickup shift" status, which meant that she would be available if someone could not work their shift. Interpreting this as a resignation, the service manager had her removed from the schedule and entered her termination date as March 29. On April 2, she arrived at the restaurant and learned that she was no longer on the schedule.

Unable to substantiate. She and her mother then met with the service manager and the mother of one of the harassers and her complaints of harassment were hotly discussed. The manager offered to restore the employee to the system so she could work that day, but she and her mother declined. He then reported her complaint to HR, prompting an immediate investigation, which ended with the company being unable to substantiate the employee’s allegations.

HWE claim. The court rejected the company’s contention that the employee’s hostile work environment claim could not advance since she failed to show it knew or should have known about the harassment and failed to act. First, a triable issue existed concerning when she first complained of the coworkers’ harassment. While the company denied that she reported the alleged harassment before April 2—the final day she came to work—she testified that she informed her manager about it sometime in March, after the coworker made a sexual remark to him about her. She then called the corporate hotline either that day or the next day.

Issues of timing. Triable issues also existed concerning the timing and motivation of her request to be taken off the regular work schedule and be placed on pickup shifts. Though she could not recall when she made the request, the service manager claimed it was in mid-March. Therefore, if a jury found she first told the manager about the harassment in early March, it could find that the company acted unreasonably by failing to investigate or take preventative action during the two-week period from when she first complained until she stopped working. And even if she did not report the harassment until about the same time she asked to be taken off the schedule, a jury could find that a reasonable supervisor would have made the connection between the two and ensured that she could work her regular hours, free of harassment, pending an investigation.

Constructive discharge. Triable issues also existed as to whether she was constructively discharged. She testified that she suffered verbal harassment for her entire tenure and experienced up to five incidents of physical contact over the course of a month. When she confronted her manager about the harassment immediately after the coworker’s "nice view" remark, neither he nor the company addressed her complaints. Having reached the point where she felt she could not work there anymore, she asked to be taken off the regular work schedule, which was treated as a resignation.

A jury could find that a reasonable person would have perceived the working conditions as intolerable. The employee, a minor, testified that the harassment "just didn’t ever stop" and her employer did not respond to her complaints. Though the company argued there was no evidence to suggest that it deliberately created the conditions or intended to force her to quit, she testified that her manager acted like the coworker’s "nice view" remark was "no big deal" and even laughed. She also asserted that he was quick to discredit her, claiming that she had no proof of harassment even though he had just heard the coworker’s remark about her. She also claimed that he would not help resolve her situation because he was trying to protect the coworker, who was under some disciplinary status stemming from a prior incident of harassment.

No retaliation. However, her claim that the manager retaliated against her for reporting sexual harassment by removing her from the work schedule was "incongruous" since he took her off the work schedule because she asked him to, not because she complained of harassment. While the sequence of events bolstered her constructive discharge claim—backed by the theory that management refused to address complaints of harassment, leading her to feel compelled to notify the manager that she could not work there anymore—it did not support a retaliation claim.

The case is No. 17-cv-01043-JLG-EPD.

Attorneys: Matthew G. Bruce (The Spitz Law Firm) for Hannah Corbin. Rebecca J. Bennett (Ogletree Deakins) for Steak n Shake, Inc.

Companies: Steak n Shake, Inc.

Cases: Discrimination SexDiscrimination SexualHarassment Discharge Retaliation OhioNews

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