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Moncel v. Sullivan's of Indiana, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

May 13, 2014

LISA R. MONCEL, Plaintiff,


WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on the Defendant's motion for summary judgment (dkt. no. 49). This motion is fully briefed, [1] and the Court, being duly advised, GRANTS the motion for the following reasons.


Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).


The facts that follow are those taken in the light most favorable to the Plaintiff, Lisa R. Moncel.

Defendant Sullivan's of Indiana, Inc. ("Sullivan's") owns and operates a restaurant on the Northside of Indianapolis, Indiana. On July 24, 2010, Sullivan's hired Moncel to work in its restaurant. During her tenure at Sullivan's Moncel worked as a bartender, server, and food runner. Moncel had various supervisors while employed at Sullivan's including: 1) Kim Vanek, Service Manager; 2) John Stanley, General Manager; and 3) Michael Christiansen, Regional Chef Manager.

While employed at Sullivan's, Moncel was paid $2.13 per hour as well as any tips she received directly from her customers. Sullivan's also had a tip-sharing policy that required servers to contribute a certain percentage of the tips they received to a "tip pool, " and then those tips were distributed to hosts, bussers, food runners, and bartenders. Servers were required to complete a form at the end of their shift that documented the amount of tips they earned and their contributions to the tip pool. These forms were then reviewed by managers for any discrepancies. Unfortunately, the tip pool system did not always function as intended, and there were many shifts where Moncel did not receive her proper allocation of tips; at times she received no tip allocation at all.

In addition to the problems with the tip pool system, Moncel experienced other difficulties while working at Sullivan's. During the course of her employment, she was formally disciplined five times for various reasons: poor performance, guest complaints, arriving late to work, etc. Further complicating matters was the fact that Moncel did not care for her supervisors. Moncel felt that Vanek intentionally engaged in acts of bullying, intimidation, and psychological isolation against female employees which led to a hostile working environment. Other managers, including Christiansen and Stanley, engaged in similar behavior, screaming and yelling at employees in a degrading manner.

Perhaps worst of all, however, was that Moncel and other female employees were sexually harassed while employed at Sullivan's. The harassment started in July 2011, when Tony, a co-worker who worked in the kitchen, grabbed and groped her breasts and buttocks and simulated sexual acts by rubbing his pelvic area against her. He also made unwanted sexual comments to her such as "I want to taste you." This behavior continued until Moncel's employment ended. Tony also touched other female employees inappropriately. Similarly, Moncel and other female employees were sexually harassed by Kenny Young, an assistant chef at Sullivan's.[2] Young would throw food objects - i.e., capers - down the shirts and/or blouses worn by the female servers and food runners. Moncel estimates that this happened to her approximately five times during the course of her employment, but alleges that it happened repeatedly to all female employees. In addition to this, one time Young held a piece of sausage near his groin area and swung it around, asking Moncel, "do you like it?" Young would also massage female employees and touch them inappropriately. Furthermore, Moncel observed Christiansen hug Danielle Hester, her co-worker, and lay his head on her breasts. She also heard Christiansen tell Katie Hoskins, another co-worker, that he was having dreams about her. Moncel opines that the uniform Sullivan's management required females to wear - V-neck or scoop-neck shirts, above-the-knee skirts, and two-inch-heeled shoes - contributed to the sexually-charged atmosphere.

For its part, Sullivan's had a sexual harassment policy in place that instructed employees to immediately report any harassing behavior to management.[3] Sullivan's also had a hotline that employees could use to complain anonymously. The sexual harassment policy and a poster informing employees of the hotline were posted on a bulletin board in the restaurant in addition to being contained in the Employee Handbook. Nevertheless, while Moncel knew about the policy and the hotline, she did not formally inform Sullivan's management that she was being sexually harassed because she was afraid of getting fired. Beginning in early 2012, however, Moncel began conducting her own research into employment law, and she became aware of certain protections that Title VII provided to her.

During the course of Moncel's employment, the employees at Sullivan's created a Facebook page entitled "Shift Swap" where they could easily communicate with others regarding scheduling conflicts and work with each other to resolve them. This page quickly turned into a place to vent about the negative and hostile environment at Sullivan's. As a result, someone suggested they limit who was allowed in the group and use it only for scheduling purposes.[4] On or around April 11, 2012, this person posted the following on the Facebook page:

This is just a suggestion, and any responses are welcome. From what I understand, George ran into difficulties with hosting this page because of what some people posted and how it was presented at work. I'm thinking we should have the same code as Fight Club. Nobody talks about it. If you swap shifts, both parties call work and say they want to trade shifts. DO NOT mention Facebook. Also, no managers (or spouses or roommates or whatever) or hostess should be members of this group. Managers, because they are required to judge everything. And no hostess, because if they trying to find people to take the cut they go to this page and tell a manager. I love them, but that's what happens. I also like it when people post articles and links here that are relevant to work. I think that should continue. Also we should have a rule about no complaining about work. Discussion anyone?

Dkt. No. 56-1. In response, Moncel said:

I agree... but maybe we can make the hostess double swear not to say anything... shit... who care if they do... it will be funny... OO a crew that can't be bullied around anymore... I love it!!! I actually hope they do find out they have been kicked out of the house, and know one wants them on here... what will they say!!! Really, look at OSHA and EOE peeps, we have rights:)))

Id. Management soon found out about Moncel's post because a Sullivan's hostess, Danielle Black, wrote a letter to management complaining about the Facebook page, and specifically, about Moncel's "negative comment[s]" regarding management. See id.

During this time, Sullivan's was already investigating another matter that had been brought to its attention regarding Moncel's employment. On April 8, 2012, a fellow server, Tim Barnes, reported to management that Moncel asked him to wear a wire to secretly tape record conversations with Vanek.[5] As part of its investigation, management received a few statements from Sullivan's employees who had witnessed the conversation between Barnes and Moncel and who generally agreed that Moncel was creating a negative environment among the staff.

On or about April 11, 2012, Stanley reached out to April Scopa, Vice President of People & Education for Del Frisco's Restaurant Group, Inc. - the parent company of Sullivan's - regarding these issues with Moncel's employment. The allegations were as follow:

• Server creating hostile environment/asking other employees to wear wire to tape conversations to ...

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