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Press Release 06-05-2013

Federal Judge Agrees with EEOC That Montrose Restaurant Created Abusive Work  Environment

Berryhill Baja's Owner Subjected Two Female Bartenders to Sexual Harassment, Federal Agency Charged

HOUSTON - A Houston judge has granted summary judgment (judgment prior to trial) in favor of the U.S. Equal Employment Opportunity Commission (EEOC) on its sexual harassment claims against a Houston restaurant, the agency announced today.

According to the EEOC's suit, the owner of Simbaki, Ltd., doing business as Berryhill Baja Grill and Cantina on Montrose Drive in Houston, created a sexually harassing hostile work environment that was severe and pervasive, and the restaurant failed to provide any workplace protections to prevent or correct the harassment.

In the order issued by Judge Nancy Atlas on May 29, the court held that evidence, primarily the deposition of the owner of the Montrose location, Philip Wattel, established that Berryhill was "rife with sexual harassment" during the employment of two female bartenders from approximately 2003 through 2008. The judge noted that, in addition to admitting to a number of the EEOC's allegations, Wattel described the Montrose Berryhill location as a "grab-assy" place.

According to the judge, even after receiving complaints of sexual harassment, Wattel did not pursue redress of the situation, but rather expressed his blatant disregard of the complaints by posting a sign that stated that sexual harassment would not be reported, but rather, would be "graded." Judge Atlas also found that, although the EEOC has only to prove that the harassment was severe or pervasive in order to prevail, the agency has actually presented evidence to show that Wattel's conduct was both severe and pervasive.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Civil Action No. 4:12-cv-00221, Dkt. # 118, pp. 14-19) in U.S. District Court for the Southern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit also includes remaining claims of unlawful retaliation against the bartenders for making complaints to and about Wattel concerning the harassment.

Judge Atlas also found that Berryhill is not entitled to assert an affirmative defense that would allow it to escape liability if the restaurant took reasonable care to prevent and correct promptly any sexually harassing behavior and the employees failed to take advantage of those preventative or corrective opportunities. The court noted that "[t]here is no evidence of actual workplace protections" provided by Berryhill, and the only avenues available to employees to complain of sexual harassment were to report it directly to Wattel, the harasser, or to lower-level managers who had no authority to do anything other than pass on the complaint to Wattel. The court found that Berryhill has failed to show that it took any care, much less reasonable care, to prevent and correct the sexually harassing behavior. According to Judge Atlas, Berryhill failed to show that the bartenders unreasonably failed to take advantage of any limited corrective opportunities since both of them made multiple oral and/or written complaints about the harassment to another manager and even to Wattel himself.

"This court's ruling is a reminder to employers that this type of illegal conduct will not be tolerated," said EEOC Regional Attorney Jim Sacher. "Employers are required to provide a workplace free of sexual harassment, and it is clear from Judge Atlas's order that the federal courts will strive to enforce that mandate."

Connie Wilhite, EEOC senior trial attorney and the agency's attorney in charge of the case, added, "The conduct by the franchise owner was so egregious in this case that the EEOC took the unusual step of seeking affirmative pre-trial findings that an unchecked hostile work environment existed. The court recognized that the owner's harassing conduct was both severe and pervasive, and that there were no workplace protections in place to prevent or correct the conduct."

Preventing workplace harassment through systemic litigation and investigation is one of the six national priorities identified by the EEOC's Strategic Enforcement Plan (SEP).

The EEOC enforces federal laws prohibiting employment discrimination. Additional information about the EEOC is available on the agency's website at