Servers can proceed to trial due to restaurant’s inadequate investigation of complaints against bartender
Tuesday, August 24, 2021

Servers can proceed to trial due to restaurant’s inadequate investigation of complaints against bartender

By Tulay Turan, J.D.

The HR representative chose to interview only a subset of workers who might have relevant information about the bartender’s conduct and purposefully asked generalized and open-ended questions.

Two female servers can proceed to trial with their hostile work environment sexual harassment claims where there was a genuine dispute whether the employer could be held liable for a bartender’s harassment, a federal district court in Colorado ruled. There were triable issues as to whether the employer vested the bartender with supervisory authority and whether the employer’s investigation into the allegations was reasonable. However, only one of the servers could proceed with her retaliation claim because she presented evidence of an adverse employment action while the other did not (Culp v. Remington of Montrose, LLC, August 19, 2021, Krieger, M.).

A bartender, who was purportedly a female server’s supervisor, made sexually implicit and explicit comments to her and a coworker. The coworker told the server she had complained to two of the restaurant’s managers, but that neither acted in response. Eventually, the coworker resigned.

Second server harassed. A second server, who was hired about a year later, also alleged the bartender made a variety of sexually implicit comments to her and touched her inappropriately on several occasions. She reported these incidents to her fellow server and asked if she should report them to management. Mindful of how management had apparently ignored the prior coworker’s complaints of sexual harassment, she cautioned the second server against raising the issue with upper management. Neither woman shared their complaints with any restaurant official.

Bartender suspended. The second server applied for a position with a former employer and told the employer about her problems at the restaurant. Word of her comments got back to one of the managers, and he met with her about the issue. Eventually, she gave a written statement to the employer that recited certain instances of the bartender’s inappropriate conduct. After an HR investigation that adduced some evidence of the bartender’s inappropriate behavior, the employer suspended him for five days and demoted him from his supervisory position.

Servers resigned. The second server alleged that shortly after the bartender returned from his suspension, the manager removed her from the work schedule entirely. She resigned, stating that it was "due to the sexual harassment and retaliation I have experienced." The first server, who was assigned to work with the bartender after his suspension, felt she was being retaliated against for having supported her coworker’s complaints, and she also resigned.

Both women commenced this action alleging claims of sexual harassment and retaliation under Title VII and the Colorado Anti-Discrimination Act and a tort claim for negligent supervision under Colorado law. The employer moved for summary judgment on all claims.

Was the bartender a supervisor? The court first noted the employer effectively conceded, for purposes of the motion, the bartender engaged in conduct amounting to sexual harassment. Thus, the issue was whether the employer could be held liable for that harassment under Burlington Industries v. Ellerth. The court found there was a triable issue as to whether the employer vested the bartender with supervisory authority.

There was evidence that, prior to his demotion, all the parties considered him to have supervisory authority. Management considered his recommendations about the employees’ performance, and he served as "manager on duty" in the manager’s absence.

No tangible employment action. However, the court explained that supervisory authority alone does not render an employer automatically liable for sexual harassment committed by that supervisor. Under Ellerth, the supervisor must take a tangible employment action for automatic vicarious liability. Here, the servers failed to show the bartender took a tangible employment action against either one. They did not contend he fired them, initiated any disciplinary action against them, reassigned them to substantially different duties or sent them home prematurely when they objected to his conduct. Rather, they made clear it was the manager who was responsible for the scheduling. Thus, because the second server could not show that the bartender used his supervisory authority to take a tangible employment against her as part of his campaign of harassment, she could not hold the employer strictly liable under Ellerth.

Inadequate investigation. Turning to the employer’s affirmative defenses, the court focused on whether the employer made reasonable efforts to prevent and correct the harassment. The court found there was a triable question of fact as to whether the employer’s investigation into the second server’s allegations of sexual harassment was reasonable. The HR representative chose to interview only a subset of workers who might have relevant information about the bartender’s conduct and purposefully asked generalized and open-ended questions.

When the individuals that HR did interview made comments that clearly indicated potential inappropriate workplace behavior by the bartender, HR declined to ask for clarification or follow up on those leads even after the employer’s counsel specifically encouraged him to do so. In addition, there was evidence the employer’s counsel recommended the bartender be terminated, but HR rejected that suggestion and instead imposed only a short suspension. Thus, the court found the employer failed to show its investigation of the complaint was reasonably calculated to ensure the employer’s compliance with Title VII. Accordingly, the court denied the motion for summary judgment on the hostile environment claims.

Second server’s retaliation claim. Next, the court found the second server’s retaliation claim presented a genuine issue for trial as to whether she experienced an adverse employment action. Shortly after the bartender completed his suspension, the server notified the manager she would be returning to school during the weeks but could work weekends. Not long thereafter, the manager removed her from the schedule of future shifts, proffering several inconsistent explanations as to why. Thus, her claim presented a genuine issue for trial.

First server’s claim. However, the court granted summary judgment to the employer on the first server’s retaliation claim because she failed to show she suffered an adverse employment action. The only adverse action she claimed to have experienced after cooperating in the investigation was being forced to work with the bartender on two shifts. There was an incident between them on one of those shifts, but it appeared the dispute was equivalent to an argument between co-workers. She first reported his post-investigation harassment at the same time she resigned. Because she did not give the employer the opportunity to address the issue, she failed to show the bartender’s harassment constituted an adverse employment action for retaliation purposes.

Negligent supervision. Finally, the court found the servers’ negligent supervision claim could proceed to trial. One of the servers reported the harassment to an event coordinator who was represented to her as being a manager. The employer disputes the coordinator had any supervisory or management authority. However, the server’s testimony that the manager represented her as such created an issue of material fact as to whether the coordinator was a designated agent of the employer to receive complaints of harassment. The court assumed, for purposes of this claim, that the server’s complaints to the coordinator gave the employer notice of the bartender’s conduct. Under a negligent supervision theory, the employer was then obligated to exercise reasonable care to protect the server against subsequent harassment.

The case is No. 18-cv-02213-MSK-GPG.

Attorneys: Benjamin Paul Meade (Killian Davis Richter & Mayle) for Stacie Culp and Stephanie Peters. Andrew H. Teske (Hoskin Farina & Kampf) for Remington of Montrose Golf Club, LLC.

Companies: Remington of Montrose, LLC; Remington of Montrose Golf Club, LLC

Cases: SexualHarassment Discrimination Retaliation StateLawClaims TortClaims ColoradoNews GCNNews

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