Hostess Accused of Rudeness Unable to Show Sex Discrimination

Takeaway: An employer can take quick disciplinary action against employee misconduct, even moving swiftly to termination, as long as it does so without reference to protected categories and acts consistently among different types of employees.

The 7th U.S. Circuit Court of Appeals granted summary judgment against a female restaurant host’s claims of harassment, discrimination, and retaliation under Title VII of the Civil Rights Act of 1964 after she was allegedly fired for rudeness rather than given progressive discipline.

Mott Street, an Asian American restaurant in Chicago, employed the plaintiff as a host from September 2015 until September 2017. During her employment, the owners of Mott Street observed that she was repeatedly impatient with guests, gave curt responses, avoided eye contact, and answered the phone without an appropriate greeting. Every month, the plaintiff allegedly had a negative interaction with a guest in which the general manager would have to intervene.

Customers also criticized the plaintiff’s attitude. The restaurant received three negative Yelp reviews related to customer visits in November 2016, all complaining about a rude, unfriendly host. The general manager reviewed the staffing schedule and determined that the plaintiff was the host working those days. He and the bar manager met with all hosts, including the plaintiff, to emphasize Mott Street’s expectation of a friendly and welcoming demeanor.

The plaintiff also did not properly notify the restaurant of her scheduling availability and preferences, and she violated its rule against using personal electronic devices in front of guests. In the summer of 2017, Mott Street received four more negative Yelp reviews about the host, and the general manager checked the schedule and determined that the plaintiff was the host on duty.

In August 2017, the plaintiff sent the front-of-house manager an email labeled “Confidential” complaining about not receiving the shifts or the position—server assistant—that she preferred. She expressed frustration at feeling singled out for criticism and disrespect. She mentioned gender twice and claimed that men at Mott Street said and did extremely inappropriate things, and that the environment was degrading for women. But she did not connect her gender to the criticism she received, claiming that the restaurant treated her worse than other women.

In September 2017, the front-of-house manager sent the general manager an eighth negative customer review concerning a host at Mott Street. The general manager determined that the plaintiff hosted on the date in question. He decided to fire her due to her negative interactions with the owners, her repeated failure to comply with Mott Street rules, and the negative guest reviews. That same day, the plaintiff sent the front-of-house manager another confidential email specifically complaining about gender discrimination and sexual harassment.

After her termination, the plaintiff sued Mott Street under Title VII of the Civil Rights Act of 1964, alleging sexual harassment, sex discrimination and retaliation, and for intentional infliction of emotional distress under Illinois state law. Mott Street moved for summary judgment, and the plaintiff failed to file a statement of facts to oppose the motion. She instead relied on her own deposition testimony and the two emails that she sent to the front-of-house manager to support her argument that she experienced unwelcome behavior at Mott Street due to her gender.  

She claimed that patrons often touched her inappropriately, a co-worker grabbed her buttocks once and hugged her inappropriately two or three times, the bar manager called her a pejorative name related to her gender, and the general manager told her to wear tight, form-fitting clothing because it looked better on her.

The district court granted summary judgment to Mott Street, finding the intentional infliction claim to be untimely and concluding that the plaintiff had not raised triable issues of fact as to her Title VII allegations. The plaintiff appealed her Title VII claims to the 7th Circuit.

On appeal, the 7th Circuit considered the plaintiff’s hostile work environment and discrimination claims. It found that, even assuming her allegations to be true, the incidents she described were not sufficiently severe or pervasive to establish harassment. While the plaintiff claimed that customers also complained about a male server who was not fired, the court found that this was insufficient to prove discrimination. She also claimed that her immediate discharge was discriminatory, but the court found that company policy did not require progressive discipline.

The court also considered the plaintiff’s evidence of retaliation but found that she had not shown a causal connection between her email complaints and her discharge. It thus upheld the dismissal of her claims.

Anderson v. Mott Street, 7th Cir., No. 23-2765 (June 13, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.