By DOUG IBENDAHL • January 30, 2008
We have learned that Jim Oberweis’ company, Oberweis Dairy, reached an out of court settlement on or about January 15th in a disturbing sexual harassment case that had garnered the attention of national legal experts for well over a year.
Terms of the final settlement agreement are sealed, but here are the underlying facts of the case.
At the time of the acts in question, the female plaintiff was a 16-year old high school student. She was employed part-time as an ice cream “scooper” at the Oberweis Dairy store in Bartlett, Illinois.
The plaintiff, who was allowed to litigate her case under the pseudonym “Jane Doe” in light of her young age, sued under Title VII of the Civil Rights Act of 1964, with supplemental claims for battery, and intentional infliction of emotional distress.
Her lawsuit also claimed that other girls were harassed, and further that higher-ups at Oberweis Dairy looked the other way when the plaintiff complained. According to the plaintiff’s attorney, the district manager in charge of the Bartlett store was himself the subject of at least 11 internal sexual harassment complaints.
The lawsuit alleged that an Oberweis Dairy shift supervisor at the store, James Matthew Nayman, had harassed the plaintiff sexually, culminating in sexual intercourse.
In August 2002, Nayman was convicted of aggravated criminal sexual assault (statutory rape). The criminal arrest and conviction followed an after-hours party with “Jane Doe” and other employees.
According to the civil lawsuit, Nayman was not disciplined by the ice cream shop or fired following his criminal conviction, but only eventually left because his probation did not allow him to work with minors.
According to court documents, the Oberweis human resources manager reportedly told Jane Doe’s mother, “There is nothing we can do about employees’ personal lives outside of Oberweis.”
In the civil lawsuit, the court summarized the behavior this way:
Nayman, the shift supervisor, regularly hit on the girls (most of the employees were teenage girls) and young women employed in the ice cream parlor. He would, as one witness explained, “grope,” “kiss,” “grab butts,” “hug,” and give “tittie twisters” to these employees, including the plaintiff. These things he did in the store, but he would also invite the girls to his apartment. He had sexual intercourse in the apartment with two of them, one of them a minor, before it was the plaintiff’s turn. He was 25 when he had intercourse with her.
And also,
Other shift supervisors were aware of Nayman’s sexually suggestive behavior with the teenage scoopers (also that he was an alcoholic) and his practice of inviting them to his apartment.
Incredibly, the federal civil lawsuit was originally dismissed by U.S. District Court Judge John Darrah in the Spring of 2005. That dismissal was essentially on technical grounds. Judge Darrah believed that the plaintiff had failed to exhaust her administrative remedies, and further that sexual harassment could not be established because plaintiff welcomed Nayman’s advances.
However, on appeal in the U.S. Seventh Circuit, the respected conservative Judge Richard Posner wrote for the Court, and reversed. Posner ordered the case back for trial, saying that the district judge had stepped out of the proper role of a judge asked to decide a motion for summary judgment. Posner concluded that the district judge terminated the case prematurely. Posner’s decision is Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006).
That trial was to have begun next month. But as this story initially stated, the parties reached a settlement approximately two weeks ago. We confirmed this fact with plaintiff’s legal counsel this morning.
Doe v. Oberweis Dairy has raised some very interesting new questions about what higher duty of care an employer may owe employees who are minors.
As Posner stated in his ruling dated July 28, 2006, “An employer of teenagers is not in loco parentis, but he acts at his peril if he fails to warn their parents when he knows or should know that their children are at substantial risk of statutory rape by an older, male shift supervisor in circumstances constituting workplace harassment.”
Posner’s opinion also included this disturbing bombshell which might very well have dire consequences for Jim Oberweis’ latest political aspirations. Referring to Oberweis Dairy, Posner observed:
No procedures were in force or utilized for protecting girls like the plaintiff from what happened to her, even though it should have been clear that the situation in the store as a result of Nayman’s antics was explosive.
No one expects Jim Oberweis to be personally present all the time in every one of his stores. But a reasonable question is raised as to the kind of culture Oberweis allowed to flourish within his company. And once placed on notice of a serious problem, what corrective steps did he take?
We also can’t help wondering, might Jim Oberweis have more important things to do right now than trying to destroy Chris Lauzen’s reputation? Has everything been done to protect the safety of the children in his employ?
We can be certain the Democrats will ask those very questions (and a whole lot more) if Oberweis becomes the nominee next Tuesday.
Will it be a Jack Ryan disaster all over again?
Doug Ibendahl is a Chicago Attorney and a former General Counsel of the Illinois Republican Party.
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