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CARPENTER v. CITY OF NORTHLAKE

November 26, 1996

FREDERICK CARPENTER, KATHLEEN HENN, and ABIGAIL DIAZ, Plaintiffs,
v.
CITY OF NORTHLAKE, a municipal corporation, Defendant.



The opinion of the court was delivered by: HART

 Plaintiffs Frederick Carpenter, Kathleen Henn, and Abigail Diaz are current or former employees of defendant City of Northlake's police department. Diaz, who is Hispanic and worked as a police dispatcher, alleges sexual harassment and retaliation for reporting the discrimination that eventually resulted in her termination. She also may be alleging sex discrimination and national origin discrimination. Henn is a police officer. She alleges sex discrimination, sexual harassment, and retaliation. Carpenter is an African-American police officer. He alleges race discrimination and retaliation. The alleged perpetrator of this conduct is Dominic Dilulio, a police sergeant and a supervisor of each plaintiff. *fn1"

 The remaining counts of the complaint are as follows: *fn2" Counts I, II, and III are designated as civil rights claims pursuant to 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Count I is on behalf of Diaz, Count II on behalf of Henn, and Count III on behalf of Carpenter. The remaining claims are supplemental state law claims. Count VI is a wrongful discharge claim by Diaz pursuant to the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1. Count VII is an intentional infliction of emotional distress claim by Henn. Counts VIII, IX, and X, respectively brought by Diaz, Henn, and Carpenter, are claims that defendant breached oral and/or written contracts to provide a workplace free from sexual discrimination. Counts XII and XIII, respectively brought by Henn and Carpenter, are respondeat superior claims.

 Presently pending is defendant's motion for summary judgment dismissing all claims except the Title VII claims contained in Counts I, II, and III. Plaintiff has also moved to strike defendant's reply brief in whole or in part on the ground that it exceeds the allowable page limit by two lines and because it contains an argument not raised in the initial brief. Defendant is admonished to henceforth comply with Local Rule 9(D) or specifically seek leave to file an oversized brief. Presently, though, leave to file the oversized brief will be granted sua sponte. As is discussed below, the new argument contained in the reply brief is rejected on its merits. Therefore, it is unnecessary to consider whether it should be considered waived. The motion to strike will be denied.

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovants and all factual disputes resolved in favor of the nonmovants. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Id. at 473. The nonmovants, however, must make a showing sufficient to establish any essential element for which they will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

 
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 For the first time in its reply, defendant contends that all the § 1983 claims should be dismissed because Title VII is the exclusive federal remedy for employment discrimination. Defendant cites Jackson v. City of Atlanta, Texas, 73 F.3d 60, 63 (5th Cir.), cert. denied, 136 L. Ed. 2d 30, 1996 U.S. LEXIS 4763, 117 S. Ct. 70 (1996). Jackson followed Fifth Circuit precedent going back to at least 1984. See id. (citing Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984)). Jackson does not consider the implications of amendments to Title VII contained in the Civil Rights Act of 1991 (the "1991 Act"), 105 Stat. 1073 (1991). Unlike the Fifth Circuit, prior to the 1991 Act, the Seventh Circuit held that Title VII was not the exclusive remedy for intentional employment discrimination by a municipal entity, but that § 1983 also provided a remedy as a violation of the Fourteenth Amendment's equal protection clause. Trigg v. Fort Wayne Community Schools, 766 F.2d 299 (7th Cir. 1985). This holding was recently reaffirmed by the Seventh Circuit. See Waid v. Merrill Area Public Schools, 91 F.3d 857, 862 (7th Cir. 1996). Waid, though, involved a pre-1991 claim and therefore the court did not expressly consider the implications of the 1991 Act. In Beardsley v. Webb, 30 F.3d 524, 527 (4th Cir. 1994), the Fourth Circuit expressly considered the 1991 Act and held it had not changed the law on this issue. At least two district court cases in the Seventh Circuit have reached the same conclusion. See Blatnicky v. Village of Shorewood, 1995 U.S. Dist. LEXIS 11814, 1995 WL 493474 *5-6 (N.D. Ill. Aug. 16, 1995); Stoner v. Department of Agriculture, 846 F. Supp. 738, 739-42 (W.D. Wis. 1994). See also Annis v. County of Westchester, 36 F.3d 251, 254-55 (2d Cir. 1994). This court agrees with Beardsly, Blatnicky, and Stoner that the ruling in Trigg remains in effect even after passage of the 1991 Act. The § 1983 claims will not be dismissed as preempted by Title VII. *fn3"

 Defendant also contends that Henn's § 1983 claim should be dismissed as untimely. The complaint was filed August 30, 1995 and the parties do not dispute that a two-year limitation period applies to § 1983 actions. Henn, however, points to a number of instances of harassment that occurred in September 1993 or later. *fn4" There is no contention by defendant that this conduct does not constitute actionable discrimination. There is also no contention that the relationship between the post-September 1993 conduct and prior conduct is insufficient to support a continuing violation theory. Therefore, no § 1983 claims will be dismissed based on the statute of limitations. It is noted, though, that it appears doubtful that the pre-September 1993 conduct claimed by Henn may be pursued under § 1983. See Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996) (even if there is a continuing pattern of related harassment, claims based on conduct outside the limitation period are not preserved if it was evident before that time that an actionable claim existed).

 Defendant moves to dismiss Diaz's Count VI IHRA claim on the ground that the IHRA does not provide for court actions. Unlike Title VII, the IHRA does not provide for de novo court proceedings, only for review of orders of the Illinois Human Rights Commission ("IHRC") after full exhaustion of administrative remedies and with all findings of fact of the IHRC sustained unless contrary to the manifest weight of the evidence. 775 ILCS 5/8-111(A); Drago v. Davis, 1996 U.S. Dist. LEXIS 12198, 1996 WL 479696 *3 (N.D. Ill. Aug. 20, 1996). See also Talley v. Washington Inventory Service, 37 F.3d 310, 312-13 (7th Cir. 1994); Jablonski v. Chas. Levy Circulating Co., 888 F. Supp. 84, 86 (N.D. Ill. 1995). Diaz argues she has fully exhausted her administrative remedies, pointing to an order of dismissal dated March 29, 1995, in which the IHRC grants her motion to withdraw her complaint. There is no contention that the IHRC erred in entering the order of dismissal and there apparently is no decision on the merits to review. Cf. Drago, 1996 U.S. Dist. LEXIS 12198, 1996 WL 479696 at *3 n.2. Count VI will be dismissed.

 Counts VII and XII are Henn's intentional infliction of emotional distress claims based on Dilulio's alleged conduct and defendant's respondeat superior liability. A one-year statute of limitations applies to state law tort claims against an Illinois local governmental entity. 745 ILCS 10/8-101. Plaintiff again relies on a continuing violation theory. The only claimed incident occurring within one year of the filing of the complaint is the denial of a vacation request in June or July 1995. Henn points to no evidence to support that this denial was extreme and outrageous or that it caused her severe emotional distress. Therefore, it is insufficient to support a claim of intentional infliction of emotional distress. See Anderson v. Village of Forest Park, 238 Ill. App. 3d 83, 606 N.E.2d 205, 214, 179 Ill. Dec. 373 (1st Dist. 1992). Since all other claimed conduct falls outside the limitation period, Counts VII and XII will be dismissed as untimely.

 A general order of a police department does not necessarily create an enforceable contract right. See Altman v. City of Chicago, 224 Ill. App. 3d 471, 586 N.E.2d 698, 700, 166 Ill. Dec. 740 (1st Dist. 1991); Lopez v. Shines, 1993 U.S. Dist. LEXIS 15140, 1993 WL 437450 *4-6 (N.D. Ill. Oct. 27, 1993); Chicago Fire Fighters Union, Local No. 2 v. City of Chicago, 1990 WL 70515 *2-3 (N.D. Ill. May 8, 1990). In determining whether an enforceable contract exists, the same legal rules are applied as would be applied to an employee handbook or other employee-related policy statement. Altman, supra ; Lopez, supra ; Chicago Fire Fighters, supra.

 
An employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the ...

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