United States District Court, W.D. Virginia, Roanoke Division
For Alexandra Bellofatto, Plaintiff: Terry Neill Grimes, LEAD ATTORNEY, Terry N. Grimes, ESQ., P.C., Franklin Commons, Roanoke, VA.
For Red Robin International, Inc., Defendant: Alison Drew Hurt, LEAD ATTORNEY, LECLAIR RYAN - RICHMOND, RICHMOND, VA; Charles Garrison Meyer, III, LEAD ATTORNEY, LeClair Ryan, PC, Richmond, VA.
Hon. Glen E. Conrad, Chief United States District Judge.
Plaintiff Alexandra Bellofatto filed this action against her former employer, Red Robin International, Inc. (" Red Robin"), alleging violations of Title VII of the Civil Rights Act of 1964 (" Title VII") and the Americans with Disabilities Act (" ADA"). The case is presently before the court on Red Robin's motion for summary judgment. For the reasons set forth below, the motion will be denied.
The following facts are presented in the light most favorable to Bellofatto. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (noting that all evidence must be construed in the light most favorable to the party opposing summary judgment).
Bellofatto has Type I diabetes, juvenile onset, and is dependent on insulin. She must check her blood sugar levels throughout the day, and eat or drink at regular intervals to keep her blood sugar levels within their target range.
In May of 2012, after graduating from Radford University, Bellofatto was hired by Red Robin to work as a server at its Christiansburg, Virginia restaurant. She had previously worked at the restaurant chain's location in Columbia, Maryland.
During her interview at the Christiansburg restaurant, Bellofatto informed David Maranto, the general manager, that she had diabetes, and that she " need[ed] to be able to sit down and drink: something or eat something really fast" if she experienced low blood sugar levels. Bellofatto Dep. 149. Maranto indicated that this " would not be a problem." Id.; see also id. at 158 (" I even mentioned ... [that] 'at my old Red Robin, they would just either give me a basket of fries or give me some bread and I'd go sit down in the back for a few minutes.' And [Maranto] was like, 'That's fair.'"). Bellofatto also shared this information with another manager, Matthew Pero, as well as her fellow servers.
Despite being told that it would not be a problem for her to take a quick break to eat or drink something to regulate her blood sugar levels, Bellofatto was frequently denied the opportunity to do so. During her deposition, Bellofatto testified that there were " many times" when her requests for breaks were either turned down or ignored, and that it " got to the point where [she] just did whatever [she] had to do so [she] didn't pass out." Id. at 206-08; see also id. at 151 (" There were times when I would just ask, like, 'Hey, I really needed to order something and eat something. Can I do that?' It didn't matter. It was, 'No, you've got tables. No, you need to get back on the floor. We'll phase you later. We'll deal with this later." '); id. at 156 (" There were times I had low blood sugars and they wouldn't give me breaks."); id. at 165 (" It was just a passive/aggressive no and they would walk away."). Bellofatto testified that she would " get yelled at" when she stopped working without permission to " chug" a cup of soda, and that she " never got to just eat if [she] needed to just eat." Id. at 153, 208.
Bellofatto described one incident involving Pero that stuck out in her mind " like a sore thumb." Id. at 170. Specifically, on September 8, 2012, Pero refused to allow her to take a break because she had not sold enough beverages during her shift:
[T]here was one time I ... asked Matt Pero[, ] " Can I have a break? I have a double [shift]. I need to go eat something or I'm going to pass out." And he was, like, " Well, what was your bev PPA this morning?" And he looked at my bev PPA, which is an average of how much I had sold beverage-wise and it wasn't over a certain range that he wanted. So he just totally disregarded me and walked away. And when I asked again, he wasn't going to give me one. I didn't get one until the p.m. manager showed up that night.
Id. at 150; see also id. at 154 (" It was, 'Matt, I'm working a double. I'm having a low blood sugar. I need to go take a break. I need to eat. I'm going to pass out.' And he didn't care.").
Several days later, Pero made a note about Bellofatto's medical condition in the daily log. He stated that " any long shifts she has only end up with her in tears complaining about her blood sugar being too high or too low." Pero Dep. 108, Docket No. 43-4. Pero opined that Bellofatto was " not taking the proper steps" to control her diabetes, and suggested that management may " need to keep her to short volume only shifts." Id.
Bellofatto also claims that she and other young female servers were sexually harassed by a male server, Phillip Sellers, and that she began to personally experience such harassment in June of 2012, soon after she was hired. During her deposition, Bellofatto identified two instances of unwelcome physical contact that occurred that month. On the first occasion, Sellers came up to her from behind; grabbed her hair; and said, with his mouth close to her face, " 'I bet you like it when your boyfriend pulls your hair [from behind].'" Bellofatto Dep. 124. Although Bellofatto " shot him a dirty look" and told Sellers not to touch her, he approached her again several days later and slapped her on the buttocks with a serving tray. Id. at 104, 124-25.
After the second incident, Bellofatto reported Sellers' behavior to Will Carico, an assistant kitchen manager. Carico advised her that he " had been continually ... trying to talk to Maranto and other people in management about the Phil [Sellers] issue, and nothing was done about it." Id. at 104. Bellofatto also complained to other managers about Sellers' conduct, but her complaints " just kind of got dismissed in general." Id. at 112.
According to Bellofatto, Sellers continued to attempt to hug her and put his arm around her. Id. at 128. In addition, Sellers called Bellofatto " sweetie or honey" instead of her name; told other employees that he and Bellofatto were dating; made comments about Bellofatto's appearance and " how lucky [her] man [was] to have [her]"; and suggested, " in a sexual manner, " that he and Bellofatto " could work something out, " when Bellofatto indicated that she was struggling financially. Id. at 143; see also id. at 144 (" [T]he way he looked at me when he said those words, the body language that came across when he said those words, it was in a very sexual manner.").
Other female servers also complained of inappropriate behavior by Sellers. In October of 2012, Kourtni Knobel called Red Robin's toll-free hotline and reported Sellers to human resources. Knobel spoke to Kristy Boyd, an HR generalist, who made notes of their conversation. According to Boyd's notes, Knobel complained that Sellers would not stop asking her out on dates. Knobel also indicated that she had complained to managers three times and that they claimed to have spoken to Sellers, but Sellers' misconduct continued. Knobel advised Boyd that Sellers had told her that he would not be mad at her if she would hug him, and that she had heard Sellers comment on other women's bodies and express a willingness to " do" them. Pl.'s Ex. 2, Docket No. 42.
Knobel provided Boyd with the names of some of her female coworkers, including Bellofatto and Tawny Vaught. Boyd spoke to Tawny Vaught on October 19, 2012. Vaught advised Boyd that her coworkers had complained about Sellers, and that Sellers had also said " inappropriate things" to her. Id. For instance, Sellers told Vaught that he would " sleep" with her, that he sometimes thought about her when he was having sex, and that he wanted to lay down and " taste" her. Id.; see also Vaught Dep. 20, Docket No. 49-1.
Kristy Boyd spoke to Bellofatto on October 20, 2012. With respect to Sellers, Bellofatto advised Boyd of the two incidents from the previous June, during which Sellers pulled Bellofatto's hair and hit her in the buttocks with a tray. Bellofatto also reported that Sellers had made comments of a sexual nature, such as " your [boyfriend]'s lucky to have you, " and " you['re] so sexy." Pl.'s Ex. 2, Docket No. 42. Bellofatto advised Boyd that she had complained to all of the managers, and that the managers had said that they would talk to Maranto. Bellofatto also relayed incidents involving other women. She told Boyd that Sellers had asked one female employee whether she was a virgin, and that he had told another female employee that he " want[ed] to lay down and taste [her]."
In addition to complaining about harassment by Sellers, Bellofatto advised Boyd that she was being discriminated against on the basis of her diabetes. Bellofatto reported that she was being denied the opportunity to take quick breaks when she was experiencing low blood sugar levels, and that members of management had advised her that she needed to get her diabetes under control.
On October 29, 2012, following Boyd's conversations with Knobel, Bellofatto, and other female employees regarding Sellers' misconduct, Sellers was issued a " Review of Policy, " which provided the following summary of his coworkers' complaints:
Recently concerns regarding your behavior with a Team Member were brought to our attention. It was alleged that [you] made inappropriate comments to Team Members. These comments include " I would sleep with you; sometimes when I'm having sex I think of you; I want to lay down and taste you; and if money's a problem we can work something out." In addition it was alleged you continue to as[k] Team Members out even after they have told you no and have grabbed a Team Member by the hair and said I bet you like it when your boyfriend does this, and hit a Team Member on the butt with a serving tray. While you deny all these allegations, it is necessary to review appropriate behavior in the workplace, as well as review Red Robin's policies, procedures, standards and expectations.
Pl.'s Ex. 1, Docket No. 42. Sellers was advised that Red Robin expected that he show improvement in the areas outlined in the letter, and that failure to comply with company policies " may result in further disciplinary action up to and including termination."
According to Bellofatto's evidence, Sellers continued to engage in the same conduct toward her and other female employees even after he was issued the Review of Policy. For instance, Bellofatto testified that Sellers " made comments to everyone, including [her] ... [l]ike, 'Oh, wow, you look so fine today. Oh, you look so good today. Oh, you look so sexy today. Oh, I like it when your hair is like that, girl.'" Bellofatto Dep. 258. Bellofatto testified that Sellers made these comments " in a sexual manner, " and that they were often accompanied by " some sort of licking face." Id. at ...