actually knew of Dexter's harassment of Jarman. Thus, the crucial issue is whether Northlake took "immediate and appropriate corrective action," which must be determined by reference to the extent of Northlake's ability to control Dexter's conduct. Even assuming arguendo that Northlake's response was appropriate, see Def.'s Br. at 4 (stating that the City "took the only appropriate . . . corrective action that it could"), we believe that Jarman's complaint includes allegations which, liberally construed, support her claim that Northlake's corrective action was not "immediate." The Complaint states that "beginning in or about June, 1995 and continuing through November, 1995, [Jarman] repeatedly complained to her supervisor" about Dexter's harassment. Compl. at P 17. On November 14, 1995, Northlake passed an ordinance prohibiting sexual harassment of employees by elected officials, and in March 1996 Dexter was censured and fined pursuant to this ordinance. Id. at PP 21, 23. The complaint thus alleges a five month delay between the time the City was put on notice of Dexter's behavior and the time when it finally began taking action to prevent it. We think that a five month delay is clearly long enough to prevent the City's response from being characterized as "immediate," which is what § 1604.11(e) requires.
With respect to the issue of control, the City argues that it "took the only action it could consistent with Dexter's rights under the First Amendment to the Constitution." Def.'s Br. at 3-5; Def.'s Reply Br. at 5-10. This argument is without merit. As Jarman correctly observes, verbal acts of sexual harassment are not protected speech. See R.A. V. v. City of St. Paul, 505 U.S. 377, 389-90, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992); Roberts v. United States Jaycees, 468 U.S. 609, 628, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984). Literally hundreds of hostile work environment sexual harassment cases, starting with the seminal case of Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986), indicate that employers (including public employers) are not only permitted to try to prevent verbal acts of harassment in their workplaces, but Title VII requires them to do so. Hence, there was never any question that Northlake could adopt an ordinance prohibiting acts of sexual harassment in its workplace, as it eventually did (albeit after a five month delay).
See Compl. P 21. Moreover, ordinances of this sort are not "prior restraints" as Northlake contends. The term "prior restraint" is used to describe "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Alexander v. United States, 509 U.S. 544, 549, 125 L. Ed. 2d 441, 113 S. Ct. 2766 (1993). Ordinances prohibiting sexual harassment achieve their purpose by imposing post-facto penalties on persons who engage in sexual harassment, thereby dissuading potential perpetrators: they are not equivalent to court orders enjoining speech. Northlake cites not a single authority (and we would be astonished if any existed) to support its contention that an ordinance prohibiting sexual harassment in the workplace could constitute a prior restraint.
Because the First Amendment created no impediment to the City's ability to bar sexual harassment in its workplace, it seems clear that Northlake had substantial control over Dexter's ability to harass Jarman: it had the power to declare Dexter's conduct illegal and to censure and punish him for it, all of which it eventually did. Compl. PP 21-22. These actions by the City apparently put an end to Dexter's harassment, since the complaint contains no allegations of harassment after November 1995. Had the City exercised its ability to control Dexter "immediately" after being put on notice of his conduct rather than waiting five months to do so, liability under § 1604.11(e) would probably not attach, but in light of the delay we cannot dismiss Jarman's claim for hostile work environment sexual harassment at this juncture.
B. Retaliation Claim
Title VII prohibits employers from retaliating against employees who complain about sexual harassment. See 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII]."). To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action. Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir. 1989).
Jarman's Complaint fails to establish that she suffered an adverse action by her employer. The Complaint states: "After Plaintiff complained publicly about Defendant Dexter's unlawful sexually discriminatory conduct to the members of the Northlake City Council, Defendant Dexter retaliated against Plaintiff by sending letters to the City Clerk's office, making unjustified complaints about the quality of the office's work." Compl. P 26 (emphasis added). The writing of these letters, even if retaliatory, cannot be characterized as an action taken "by [Jarman's] employer" since Dexter apparently sent them on his own initiative: upon learning of the letters, the Mayor of Northlake instructed Dexter to stop sending them, see Compl. P 27. Furthermore, such letters do not constitute "adverse action." The Seventh Circuit has described the adverse action necessary to sustain a retaliation claim as follows:
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.
Crady v. Liberty Nat. Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Jarman does not claim that any adverse consequences of the kind described in Crady resulted from Dexter's letters. Even if these letters were somehow interpreted as formal performance evaluations, they would not be sufficient to support a retaliation claim. See Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) (discussing the insufficiency of negative performance evaluations standing alone and stating that "while adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action"). Accordingly, Jarman's retaliation claim must be dismissed.
IV. Section 1983 Claims
Section 1983 provides that "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured . . . ." 42 U.S.C. § 1983. The Seventh Circuit has held that sexual harassment, a form of sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment, is actionable under § 1983. Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986). Northlake apparently concedes that Dexter, as an alderman, acted under color of law when he harassed Jarman. The City argues, however, that it cannot be held liable for the actions of Dexter because they were not undertaken pursuant to a municipal policy or custom. See Def.'s Br. at 6-7; Def.'s Reply Br. at 12-14.
The seminal case in the area of municipal liability under § 1983 is Monell v. Department of Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Monell provides:
Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.
Monell, 436 U.S. at 690-91. In addition to liability for official policies and well-settled customs, municipalities can also be held liable for single acts by municipal policymakers, see Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986), provided that the act is taken by a person who "possesses final authority to establish municipal policy with respect to the action ordered," id. at 481.
In this case, it is clear that Northlake had no official policy authorizing sexual harassment of its employees, and that Dexter, as an individual alderman acting alone, did not possess final authority to establish such a policy, see id. (final authority is possessed by the government's "authorized decisionmakers"). Hence, Northlake's § 1983 liability for Dexter's harassment turns on the whether the City had a well-settled custom of condoning sexual harassment of its employees.
Jarman directs our attention to two cases where courts in this Circuit found municipal liability based on a custom of nonresponsiveness to sexual harassment complaints. See Pl.'s Br. at 12. First, in Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986), the plaintiff had been employed as a dispatcher for a local fire department, and during the duration of her employment was subjected to constant and severe sexual harassment by her supervisors. See id. at 1182-83. The court found that
management officials responsible for working conditions at the fire department 'knew the general picture if not the details' of the pattern of harassment. Complaints by the victims of sexual harassment were addressed superficially if at all, and the department had no policy against sexual harassment. In sum, sexual harassment was the general, on-going, and accepted practice at the East Chicago Fire Department, and high-ranking, supervisory, and management officials responsible for working conditions at the department knew of, tolerated, and participated in the harassment.