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.
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
(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
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 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
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 ...