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06/22/95 GUY TRAYLING v. BOARD FIRE AND POLICE

June 22, 1995

GUY TRAYLING, PLAINTIFF-APPELLANT,
v.
BOARD OF FIRE AND POLICE COMMISSIONERS, THE VILLAGE OF BENSENVILLE; JOSEPH STORTO, DAVID DENCH, MICHAEL SALANTINO, COMMISSIONERS; AND MICHAEL ALLISON, VILLAGE MANAGER OF THE VILLAGE OF BENSENVILLE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 93-MR-0571. Honorable Keith S. Lewis, Judge, Presiding.

The Honorable Justice Hutchinson delivered the opinion of the court: Doyle and Colwell, JJ., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Plaintiff, Lieutenant Guy Trayling, appeals from an order of the circuit court of Du Page County affirming the decision of the Board of Police and Fire Commissioners of the Village of Bensenville (board) to suspend plaintiff from the Village of Bensenville fire department (VBFD) for 30 days without pay. Bensenville village manager Michael Allison (Allison) filed charges against plaintiff in May 1993. Allison charged plaintiff with sexually harassing Bensenville employee Karen McGloon (McGloon) in violation of title VII of the Civil Rights Act (Title VII) (42 U.S.C. ยง 2000e-2(a)(1) (1988)) and the Illinois Human Rights Act (Act)(775 ILCS 5/2-101(E) (West 1992)). Pursuant to the Illinois Municipal Code (65 ILCS 1/1-1-1 et seq. (West 1992)) Allison requested plaintiff be discharged (65 ILCS 5/10-2.1-16 (West 1992)). The board disciplined, but did not discharge, plaintiff. Both Allison and plaintiff filed for administrative review with the circuit court. The circuit court affirmed. Only plaintiff appeals the circuit court's order.

Plaintiff raises several issues. He contends (1) Allison as village manager lacked the authority to file charges of misconduct against plaintiff with the board; (2) Allison as village manager lacked the authority to appeal the board's decision to the circuit court; (3) as a matter of law the board erred in finding plaintiff sexually harassed McGloon; (4) the definition of sexual harassment applied by the board deprived plaintiff of his free speech rights; and (5) the definition of sexual harassment applied by the board was unconstitutionally vague and therefore violative of plaintiff's right to due process. We affirm.

The events giving rise to the present case took place largely in the office of the fire prevention bureau (bureau) of the VBFD. Plaintiff is a lieutenant with the VBFD assigned to the bureau. Lieutenant Ronald Nootbar (Nootbar) was also assigned to the bureau. In May 1991 McGloon was hired as a part-time secretary for the bureau. Both plaintiff and Nootbar were assigned to the bureau when McGloon was hired. Due to budgetary constraints McGloon was unsuccessful in her attempt to increase her hours to full-time.

McGloon testified plaintiff initiated physical contact with her on two occasions. McGloon testified that on June 12, 1992, plaintiff walked up behind her, kissed her on the cheek, and said "goodbye *** have a nice weekend." The following Monday McGloon related the incident to Nootbar. She told Nootbar she was upset about plaintiff kissing her and she thought this conduct was "out of line." On direct examination, Nootbar corroborated McGloon's testimony. Fire chief Willard Schoppe testified that on June 16, 1992, McGloon's husband Dan McGloon complained to him about this incident.

The second physical contact concerned plaintiff putting his hands on McGloon's waist. McGloon testified she was bending over a file cabinet when plaintiff approached her from behind, placed his hands on her hips, and physically moved her to the side. She stated this occurred either in June or July 1991. In a document entitled "Findings and Decision" (decision), the board determined these two instances of physical contact did not amount to sexual harassment.

The vast majority of McGloon's testimony concerned plaintiff's verbal statements and questions. At the hearing before the board McGloon testified to a number of exchanges between her and plaintiff, as well as conversations between plaintiff and Nootbar. These communications took place almost exclusively in the bureau office.

McGloon stated the comments she considered sexual harassment began a few weeks after her hiring. The first comment had to do with various "sexual aids and dildos" sent to the fire station. These sexual aids had been addressed to plaintiff at the fire station. This occurred during the tenure of the bureau's previous secretary. McGloon testified plaintiff used the word "dildo" in discussing this matter with her. He told McGloon he had instructed her predecessor to send a letter to the company responsible for the sexual aids stating plaintiff was dead.

Nootbar testified plaintiff discussed various sexual aids in McGloon's presence. He stated a "couple" of these discussions took place. Nootbar agreed these discussions took place early in the course of McGloon's employment. He testified that "periodically *** a magazine or something would come to the station in [plaintiff's] name listing movies and sex toys." While he stated the magazines were addressed to plaintiff, Nootbar did not know who ordered these publications. Nootbar testified plaintiff would look through the magazines and talk about the "vibrators in the magazines, the dildos, some other type of toys that I don't know what they're called."

McGloon testified the next incident occurred in September 1991. She stated plaintiff was talking about his ex-wife. According to McGloon, plaintiff said he and his ex-wife divorced "because she was out [f g] some other guy." On cross-examination McGloon testified plaintiff repeated this statement on several occasions. Asked for the dates of these incidents, McGloon stated she could not recall. McGloon testified these comments occurred in the bureau office. She stated she believed Nootbar was present during some of these comments.

Nootbar corroborated McGloon's testimony. Nootbar stated plaintiff was upset about his wife not coming home for two nights. On two or three occasions Nootbar heard plaintiff say his wife was either "being [f d] by somebody else or out [f g] other guys."

The next incident took place during the first week of August 1992. McGloon testified plaintiff approached within two or three feet of her, unzipped his trousers, pulled his pants approximately four inches below his waist, tucked in his shirt, closed his trousers and then walked away. Immediately prior to ...


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