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WOERNER v. BRZECZEK

July 21, 1981

JANINE WOERNER, ET AL., PLAINTIFFS,
v.
RICHARD BRZECZEK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs Janine Woerner ("Woerner") and Jesse Valles ("Valles") are Chicago police officers. They bring this action under 42 U.S.C. § 1983 ("Section 1983") alleging two Fourteenth Amendment claims: sexual harassment of Woerner in violation of the Equal Protection Clause and retaliatory acts against both plaintiffs in violation of their First Amendment rights (as incorporated into the Fourteenth Amendment). Two other counts assert pendent jurisdiction claims. All defendants have moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6). For the reasons stated in this memorandum opinion and order that motion is granted in part and denied in part.

Facts*fn1

In March 1979 Woerner was assigned to duty as a patrol officer in Chicago's 20th District under the direct supervision of Lieutenant John Thedos ("Thedos"). Thedos commenced a series of actions designed to harass Woerner including:

  (1) embarrassing and belittling remarks in front of
      fellow officers;

(2) repeated sexual advances;

(3) interception of mail and phone messages; and

  (4) harassment of male police officers who requested
      to work with Woerner.

All such actions were directed at Woerner because she is a woman.

About April 25, 1979 Valles and Woerner were assigned to be patrol partners under Thedos' supervision. Both were then subjected to constant ridicule during roll call, in the station and in the field.

On January 1, 1980 Woerner and Valles were reassigned to the 14th District under the supervision of District Commander Paul Jankowski ("Jankowski"). Jankowski informed Woerner that she had come from the 20th District with a negative reputation and also inquired as to the existence of a sexual relationship between Woerner and Valles (a married man).

On March 31, 1980 Valles complained to Deputy Chief John Townsend ("Townsend") about the treatment Woerner was receiving. Townsend failed to take any corrective action. Within a few days Jankowski chastised Valles for having made such a report. Thereafter Thedos, Jankowski and others acted in concert to penalize plaintiffs for complaining about their treatment.

On August 5, 1980 Woerner was injured while on duty. Daniel Williamson ("Williamson"), Acting Coordinator of the Police Department Medical Section, commenced a series of actions designed to harass Woerner. Those actions included repeatedly requiring Woerner, then on crutches, to report to the Medical Section of the Police Department for no apparent or stated reason. On one of those occasions Woerner fell to the floor and reinjured herself. When Valles registered a complaint over the medical harassment Woerner was receiving, he was charged with insubordination.

Plaintiffs exhausted all intradepartmental remedies, including directing grievances to Superintendent of Police Richard Brzeczek ("Brzeczek"), who also refused to take action against the other defendants (thus tacitly approving their conduct). No action was taken on any of the grievances, so plaintiffs brought their complaint of sex discrimination to Channel 5 News. As a result, Thedos registered a complaint that triggered an Internal Affairs Division investigation of both plaintiffs.

Count I

Count I alleges the two Section 1983 causes of action referred to earlier. They will be dealt with in turn.

1. Sexual Harassment of Woerner

Many of Woerner's troubles stem from her initial encounter with Thedos. She was subjected to a long series of harassing activities because she was female. Although she was never fired, the Complaint's allegations paint a picture of an intolerable working environment and severely dampened career opportunities.

Such allegations of sexual harassment are creating a growing body of employment discrimination law. However Woerner chose not to use an administrative remedy under Title VII, instead seeking direct relief under Section 1983 for a violation of the Equal Protection Clause. While Woerner's failure to pursue a Title VII claim will not bar her Section 1983 claim, see, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-61, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975) (simultaneous Title VII and Section 1981 claims permissible),*fn2 neither the parties nor this Court have found a case addressing the question whether sexual harassment can constitute a violation of the Equal Protection Clause.

Were this a Title VII case, this Court would have no difficulty in upholding the Complaint. It is in full agreement with the decision in Bundy v. Jackson, 641 F.2d 934, 943-46 (D.C.Cir. 1981), where the Court held that Title VII permits a cause of action where a woman has been subjected to sexual harassment even if she has not been deprived of any tangible job benefits. Upon analysis this Court has determined that though the ...


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