Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—W.D. Wis.: Burger King crew member takes coworker sexual harassment claim to trial, (Oct 14, 2025)

By Kathleen Kapusta, J.D.

The employee alleged that the harassment occurred in the “small space” in which employees worked together in the restaurant, that managers witnessed the conduct, and that the GM egged the coworker on.

A Burger King crew member’s evidence of a coworker’s physically threatening behavior and explicit sexual comments directed toward her—including putting his hands around her neck and repeatedly referring to her as “booty” among other things—as well as evidence that the alleged conduct occurred repeatedly in a workplace of only five employees and in the presence of supervisors, was enough to preclude summary judgment on her Title VII sexual harassment claim. A federal court in Wisconsin, however, granted summary judgment to the employer on the employee’s sex discrimination and retaliation claims (Schwengel v. Cave Enterprises Operations, LLC, dba Burger King of Saukville, No. 24-cv-558-wmc (W.D. Wis. Oct. 10, 2025)).

Alleged harassment. About a month after the employee began working at the Burger King store in April 2022, her coworker also started working there. According to the employee, he immediately started making sexually inappropriate comments, including about the length of his tongue and how he could use it to please her, repeatedly referring to her as “booty,” and making other crude comments about genitalia. She also claimed that he made comments about grabbing her ponytail in a sexual manner and once put his hands on her without her consent and showed her how he could physically snap her neck.

Egged on. Although she did not formally report his conduct until November when she purportedly verbally told the general manager about the harassment, she alleged that a manager witnessed the coworker calling her booty and the GM laughed at the coworker and egged him on. Shortly after the employee reported her coworker, she claimed he took medical leave and did not work there for the remainder of his employment. Following her report of sexual harassment, however, the employee claimed she was scheduled for fewer shifts.

Termination. On March 1, 2023, the employee received a written warning for showing up two hours late for her shift. According to the warning, the employee had previously received multiple verbal warnings about her tardiness but she claimed she could only remember one possible warning. When she failed to show up for her shift several days later, she was fired for excessive tardiness and no-call, no show.

Hostile work environment. In response to her subsequent lawsuit alleging unwelcome sexual harassment, the employer argued that the coworker’s conduct was not sufficiently objectively offensive to create a hostile work environment. Disagreeing, the court pointed to the instance in which the coworker placed his hands about the employee’s neck, noting it went well “beyond the sort of casual contact which (if it were consensual) might be expected between friendly co-workers, and manifest[ed] in more intimate, intrusive forms of contact.” Further, the court continued, his comments about grabbing her ponytail in a sexual manner could reasonably be viewed as threatened physical contact.

In addition, he allegedly repeatedly described hypothetical sexual acts between himself and the employee that, said the court, could readily be interpreted as uninvited sexual propositions, repeatedly referred to her as “booty,” made kissing noises in the workplace, and used crude terms referring to genitalia. Under the totality of the circumstances, a reasonable jury could find both the severity of the conduct and its repetition over time created an actional hostile work environment, the court concluded.

Employer liability. The employer next argued that the employee failed to show it was liable for the coworker’s alleged harassment as she purportedly made only one single complaint in November 2022 after which she no longer experienced any harassment. The employee argued, however, that managers were present at each of her shifts, that the workplace was a “small space,” that only about five employees were present during those shifts, and that the general manager egged the coworker on. Thus, she asserted, the employer had constructive knowledge of the coworker’s conduct.

Noting that the employer did not dispute that the workplace was a small space where employees could generally hear one another or that much of the coworker’s conduct occurred in the shared space over the course of several months, the court noted that a reasonable jury could find that the employer had constructive notice of the coworker’s conduct, and therefore that it was liable for his conduct by failing to address or correct it, whether or not the employee formally reported it. Accordingly, the court denied summary judgment against this claim.

Sex discrimination. As to the employee’s claim she experienced unlawful sex discrimination when her employer reduced her hours and ultimately fired her after she reported her coworker’s conduct, the employer pointed out that the hours of all employees at the store were reduced due to decreased demand from January to March and there was no evidence only her hours were reduced during this time.

And while the employee argued that at the time of her termination she was meeting her employer’s legitimate expectations because she did not have three recorded instances of tardiness before she was fired, as required by policy, the court noted that she failed to meet the employer’s requirement that she notify managers of lateness or absences in at least two instances and there was no evidence she was treated less favorably that any other employee fired for being late and missing work. Thus, said the court, “no reasonable jury could infer only from defendant’s policies that [it] terminated [the employee] because of her gender, even if in doing so defendant failed to follow its own policies to the letter.”

Retaliation. Turning finally to the employee’s claim she was fired in retaliation for reporting the alleged harassment, the court found a lack of evidence of causation. Even if the decisionmakers knew about the employee’s verbal report of harassment, which was contested, there was no evidence the report played any part in the termination decision. Not only was there a delay of six months between the employee’s report and her termination; her undisputed tardiness and absence provided a sufficient alternative explanation and a legitimate, nonretaliatory explanation for her termination, said the court, finding no evidence the employer’s relatively minor deviation from its policies and procedures was unusual in the workplace, much less that the employee’s tardiness and absence were pretextual.

The case is No. 24-cv-558-wmc.

Judge: Conley, W.

Attorneys: Max Thomas Lindsey (Anich, Wickman & Lindsey) for Vanessa Schwengel. Andrew Riley Brehm (Scopelitis, Garvin, Light, Hanson & Feary) for Cave Enterprises Operations, LLC.

Companies: Cave Enterprises Operations, LLC; Burger King of Saukville

Cases: SexualHarassment Discrimination SexDiscrimination Retaliation Discharge WisconsinNews GCNNews