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Volk v. Coler

decided: May 2, 1988.


Appeal from the United States District Court for the Central District of Illinois, No. 81-3366-Richard Mills, Judge.

Cudahy and Manion, Circuit Judges, and Will, Senior District Judge.*fn* Manion, Circuit Judge, concurring.

Author: Will

WILL, Senior District Judge:

Vivian Volk, an alleged victim of sexual harassment, sex discrimination and retaliation in her employment with the Illinois Department of Children and Family Services ("DCFS"), brings this appeal following a separate bench trial (Title VII claims) and jury trial (other claims). Volk initially brought claims under: (1) 42 U.S.C. § 1983 (sex discrimination and sexual harassment), 42 U.S.C. § 1985(3) (conspiracy to retaliate against her opposition to alleged sex discrimination, and retaliation in furtherance of that conspiracy), the due process clause of the fourteenth amendment (unfair grievance proceedings) and the first amendment*fn1 (violation of the right to oppose alleged sex discrimination and sexual harassment) against defendants George Coler, Jessie Hairston, Marty Lohman, Jesse Viers, James Tapen and Thomas Ward, in their official and individual capacities, (hereinafter, collectively referred to as the "individual defendants"); and (2) Title VII (sex discrimination, sexual harassment, conspiracy to retaliate and retaliation) (42 U.S.C. § 2000(e) et seq.) against the DCFS.*fn2 The individual defendants were all DCFS supervisory employees.

After all the evidence was presented, but before submitting the plaintiff's claims to the jury, the district court directed a verdict for defendants Coler and Hairston on all claims, and for defendants Tapen, Lohman, Ward and Viers on the §§ 1983 and 1985(3) and due process claims. The district court entered judgment for the DCFS on all of Volk's Title VII claims. See Volk v. Coler, et al., 638 F. Supp. 1540 (C.D. Ill. 1986) (directed verdicts); Volk v. Coler, et al., 638 F. Supp. 1555 (C.D. Ill. 1986) (Title VII). Volk's first amendment claims were submitted to the jury and a verdict was entered against defendants Tapen, Lohman, and Ward, but not Viers, in the amount of $35,000 in compensatory damages and $30,000 against Tapen and $10,000 against Ward in punitive damages. Volk appeals the directed verdicts and Title VII judgment. The defendants' cross-appeal has been dismissed pursuant to Circuit Rule 3(b).

We find that substantial evidence does not support any of Volk's claims against defendants Coler, Hairston and Viers and we therefore affirm the district court's directed verdicts with respect to all claims against them. We also find that Volk had no protected property interest in continued employment or placement at a specific DCFS office while employed by the DCFS and we therefore affirm the district court's directed verdicts with respect to her due process claims. We find that substantial evidence exists as to Volk's § 1985(3) conspiracy claims against defendants Tapen, Lohman and Ward and we reverse the district court's directed verdicts with respect to Volk's § 1985(3) claims against these defendants. However, because Volk has already been compensated for all of the acts giving rise to her § 1985(3) conspiracy claims, we do not remand for a new trial with respect to these claims. Finally, we find that substantial evidence exists as to Volk's § 1983 sex discrimination and sexual harassment claims against defendants Tapen, Ward and Lohman and we therefore reverse the district court's directed verdicts with respect to these claims. Volk has already been compensated for all the acts occurring after January 9, 1980 which gave rise to her § 1983 claims. Such acts of alleged sex discrimination and sexual harassment were only committed by Tapen and Hairston, and we have affirmed the directed verdicts in favor of Hairston. Accordingly, we remand for a new trial only with respect to her § 1983 claims against Tapen for acts which occurred before January 9, 1980. Evidence of Tapen's acts which occurred after January 9, 1980 are relevant and admissible to establish a pattern and practice of harassment and discrimination but damages on remand are limited to pre-January 9, 1980 acts.

With respect to Volk's Title VII retaliation claims against the DCFS for denying her promotions in violation of her first amendment rights, which the district court dismissed prior to the jury's verdict against Tapen, Lohman and Ward, the district court was bound on the retaliation aspect of her Title VII claims by the jury's verdict with respect to acts occurring after January 9, 1980. That verdict was not set aside by the district court and the appeal with respect thereto was dismissed by the defendants. A judgment in the amount of $35,000, the amount awarded against Tapen, Lohman and Ward, representing back pay, should have been entered against the DCFS. Punitive damages are not recoverable under Title VII. Accordingly, we reverse that portion of the district court's judgment for the DCFS which dismissed Volk's Title VII retaliation claims and direct the district court to enter a judgment against the DCFS in the amount of $35,000, for which it and defendants Tapen, Ward and Lohman are jointly and severally liable.

With respect to acts prior to January 9, 1980, the district court will be bound under Title VII by any jury verdict on the retrial of Tapen for acts before that date, unless the court sets the verdict aside. An appropriate judgment for or against the DCFS should be entered on the jury's verdict.

The district court would have been bound on Volk's other Title VII claims against the DCFS, sex discrimination and sexual harassment, by a jury's verdict on her § 1983 sex discrimination and sexual harassment claims against the individual DCFS employees Tapen, Lohman and Ward which the district court erroneously dismissed. We have reversed the dismissal of those claims by the district court against the individual defendants. We have not, however, ordered a new trial on those claims because Volk has already been compensated in the jury's verdict for the post-January 9, 1980 acts of the individual defendants. Similarly, while we reverse the judgment dismissing Volk's Title VII claims of sex discrimination and sexual harassment for post-January 9, 1980 acts against the DCFS, no further award of damages against the DCFS or equitable relief is necessary or appropriate.



Volk began working as a child abuse outreach worker in November, 1978 for the Covenant Counseling Service ("Covenant"), a branch of Covenant Children's Home in Princeton, Illinois. Volk was assigned to work in the DCFS' Ottawa Field Office following a grant received by Covenant and pursuant to a contract between the DCFS and Covenant. Tapen was the Team Leader of the DCFS' Ottawa Field Office and Volk's direct supervisor at Ottawa, managing her daily work. Volk's allegations focus on Tapen's actions allegedly conducted with the knowledge and approval of the other individual defendants.

Evidence of Alleged Sexual Harassment

Volk contends that her professional relationship with Tapen was initially satisfactory but deteriorated when she rejected his numerous sexual advances, suggestive displays and crude remarks. Volk alleges that, although she was married and he knew it, Tapen began persistently inviting her out socially after work, which she declined. Volk claims that Tapen touched her in many overtly sexual and offensive ways, made several explicit sexual gestures before her, and frequently called her "hon," "honey," "babe" or "tiger."

Volk alleges that at a DCFS social function in March, 1979, Tapen made several sexually offensive advances toward her. Volk objected and said, "Tapen, I'm not going to mess with you." Tapen suggested that Volk and her co-worker Mary Wegrzyn were "queer" and later told Wegrzyn that "if it wasn't for you filling her with the women's lib . . ., she'd be staying at home with her old man where she belongs."*fn3

According to Volk, later that week, and a few days after Volk left her husband, Tapen called Volk into his office and complained that she and Wegrzyn were spending too much time together and ignoring other workers. Tapen indicated, however, that Volk was working satisfactorily and none of her co-workers had complained about her work. Volk then asked what she should be doing differently. According to Volk, Tapen then leaned back in his chair, slid way down, . . ., smiled and said, "I'm just telling you to be nicer to everybody."

Volk did not respond favorably to Tapen's suggestions. According to Volk, Tapen thereafter reacted in an abrupt and cold manner towards her, and ignored his responsibilities regarding her cases. Tapen repeatedly called Volk's work ". . . women's lib. . . ."

Volk contends that Tapen engaged in similar acts of alleged sexual harassment against three other Covenant employees: Kathy Thorne, Alice Fitzgerald and Wegrzyn. Tapen allegedly touched Thorne in offensive manners, called her "hon," "honey," or "babe," and, after she objected, verbally abused her. In one instance, Tapen said to a male employee, Henry Over, in Thorne's presence, "See, I told you she was a . . ., and the reason she's a . . . is because she doesn't have a man." Thorne was later transferred to Covenant's Princeton office. Volk alleges that Tapen engaged in the same sexual gestures while sitting in front of Fitzgerald that he had in front of her. Volk further contends that Tapen made several sexual gestures towards Wegrzyn, called her "honey," "babe" and "tiger" and, after she objected, said "You don't have to be so . . . about it." Tapen allegedly then became cold, angry, hostile, critical of Wegrzyn's work and interfered with her cases. In addition, Volk maintains that Tapen made numerous degrading remarks about several other DCFS female employees and offensively touched other women working there.

Evidence of Alleged Sex Discrimination and Retaliation and Grievance Proceedings

Volk produced substantial evidence as follows that Tapen prevented her from advancing professionally at the DCFS. In light of the district court's directed verdicts, this evidence must be weighed in Volk's favor. Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985).

In April, 1979, Tapen refused to call the Department of Personnel to correct an error and confirm that Volk earned an "A" on a test for the position of Social Worker I. As a result, Volk's name was not on the eligibility list and Wally Kuhn, a male, was hired for an available position in the Ottawa office.

Volk took the test over and again received an "A". Volk applied for another available Social Worker I position in December, 1979. On January 2 and 3, 1980, Tapen interviewed Volk and questioned her on business and nonbusiness issues. Tapen told Volk that she was performing well. However, the position was offered to Eileen Fane, a trainee at Ottawa who was then ineligible to transfer because she had not completed six months training. Tapen admitted to Volk that he was using aspects of her personal life against her application.

Tapen consulted with Hairston, a DCFS Peoria Regional Administrator, before hiring the trainee.*fn4 Hairston approved Tapen's choice. Wegrzyn later advised Hairston of Tapen's alleged sexual advances toward Volk. Hairston, however, maintained his approval of Tapen's hiring selection.

On January 9, 1980, Volk filed a written grievance, protesting Tapen's interview questioning and refusal to hire her, claiming that his actions were discriminatory and in violation of the DCFS Department of Personnel Rules.*fn5 This date is significant in that it marks the point after which Volk's first amendment claims and claims for retaliation are implicated. Lohman, a DCFS Field Supervisor in Peoria and Tapen's supervisor at that time, was present when Volk presented her first grievance to Tapen. Tapen denied Volk's grievance and submitted it to Hairston. The grievance was reviewed at the regional level by Hairston, Viers, a DCFS Labor Relations Specialist assigned to handle Volk's grievances, Lohman, and John Henderson, a DCFS Labor Relations Administrator. Henderson concluded that Tapen's actions were improper and Volk's allegations would be "hard to defend" if true.

Sometime in January, 1980, DCFS supervisors discussed transferring Volk to another office if Ottawa received a second grant. She would not be transferred, however, before July, 1980, when the first grant expired.

Volk presented her complaint orally to Viers, Lohman and Hairston. In their presence, Tapen admitted advising Volk following the job interview that she would be rejected because she did not attend a Christmas party held by other workers and her roommate failed to invite other workers to their home. Viers later submitted a written report, summarizing this meeting, to Hairston, Lohman and Henderson, who worked under Coler, the DCFS Director.

On January 31, 1980, Jan van Blommesteyn, DCFS' Chief of Labor Relations who reported under Coler, sent Hairston a memo asking that Viers speak to Tapen because "the grievance as written is something we should all be very concerned about." Volk also sent a copy of her grievance to Coler, requesting that he take corrective action.

On February 11, 1980, the trainee selected by Tapen withdrew her application, leaving Volk as the only remaining applicant. Nevertheless, Tapen refused to select Volk and looked for other potential applicants.*fn6 These decisions were approved by Coler, Hairston, Lohman and Viers. Hairston, pursuant to Viers' recommendation and Lohman's approval, denied Volk's grievance.

With the assistance of counsel, Volk appealed her grievance to Coler. On March 10, 1980, Volk's counsel discussed the grievance with Henderson and indicated that Volk would file sex discrimination charges with the Fair Employment Practices Commission and the Equal Employment Opportunity Commission if Tapen continued to deny her employment. Henderson later advised Hairston in a memo that "because of the sensitive nature of this grievance, all documentation available is critical in supporting management's decision not to select this candidate." This memo was distributed to Tapen and Gordon Johnson, DCFS' legal counsel and Deputy Director who reported directly to Coler. Lohman and Viers were also notified about Volk's stance. Tapen was told that Coler's office was investigating his actions.

On March 25, 1980, Tapen told Volk that she was being transferred from the Ottawa field office. The grant funding Volk's work at Ottawa, however, was not due to expire until July 1, 1980. Moreover, Tapen was then actively seeking other staff for the Ottawa office. The decision to transfer Volk was approved by Lohman and Ward, Hairston's interim successor as Peoria Regional Administrator, and Volk's cases were taken away from her.

On March 27, 1980, a third level grievance hearing was held by Tapen, Viers, Lohman and Henderson. At this meeting, Tapen admitted that Volk was a good worker and qualified for the Social Worker I position. However, he defended his refusal to hire Volk by stating that she created dissension among the staff, used loud profanity and was aggressive and overbearing. This was Tapen's first assertion of any business-related concerns. When Volk's counsel raised allegations of sexual harassment and retaliation, Tapen became hostile and threatened that Volk would never again work in the Ottawa field office. Henderson made a written summary of this meeting and sent copies to Coler, Lohman and Ward. On April 1, 1980, Tapen told Volk, "There's going to be one hell of a fight and things are going to get pretty nasty before I'm through." Volk was transferred on April 3, 1980 to the DCFS Princeton office.

Volk's counsel protested to Coler and demanded that Volk's transfer be withdrawn and her qualifications for any position be evaluated by someone other than Tapen. On April 3, 1980, Blommesteyn advised Coler in a memorandum that if Volk's account was true, Tapen's threats and retaliatory action against her "demonstrat[ed] improper conduct and possibly unprofessional behavior. . . the fact we have a potential sexual discrimination suit being considered causes serious concern on my part." Blommesteyn later wrote to Coler, "Because of the sensitive nature of these two grievances, I am sending the proposed third level response to your office for review." On April 10, 1980, Coler denied Volk's grievance. In a letter to Volk's counsel, Coler stated, "I have reviewed the attached summary of the third level meeting, and I concur with the recommendations therein."

In late April or early May, Volk was again interviewed by Tapen for the Social Worker I position still available. Tapen again refused to hire her and hired a male applicant who received a "C" on the exam and had no experience with DCFS or a similar agency. In comparison, Volk earned an "A" on the exam and had accumulated 17 months experience at the Ottawa office. Viers, Lohman and Ward approved Tapen's action.

In May, 1980, Volk submitted another grievance, protesting her removal from the Ottawa office in April, 1980, and charging Tapen with sex discrimination and retaliation. Tapen refused to discuss the grievance at the first level, Ward denied it at the second level, Coler did not respond at the ...

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