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JARMAN v. CITY OF NORTHLAKE

January 15, 1997

DEBORAH JARMAN, Plaintiff,
v.
CITY OF NORTHLAKE and ROGER A. DEXTER, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Deborah Jarman has been employed by Defendant City of Northlake since 1993. Jarman claims that between April and November of 1995 she was sexually harassed by Defendant Roger Dexter, and that the City's failure to prevent this harassment renders it liable under Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1983. Jarman additionally claims that the City violated these same two provisions by retaliating against her for complaining about Dexter's conduct. Northlake has moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss all of Jarman's claims against it. *fn1" For the reasons set forth below, the motion is granted in part and denied in part.

 I. Motion to Dismiss Standard

 Dismissal under Rule 12(b)(6) is improper "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). For purposes of this motion, we must take all of the well-pleaded factual allegations in the complaint as true, and construe them in the light most favorable to the plaintiff. See Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 644 (7th Cir. 1995). *fn2"

 In May 1993, the City of Northlake hired Deborah Jarman as a deputy clerk, a position which she has held ever since. Compl. P 8. Jarman's direct supervisor is City Clerk Evelyn Sturm, who in turn is subject to the control of the Northlake City Council, a body comprised of eight elected aldermen. Id. PP 9, 17. The City Council determines the budget for the Clerk's Office, and its approval is required with respect to employment decisions in the Clerk's Office, including hiring, firing, and employee salaries. Id. In 1995, one of Northlake's eight elected aldermen was Roger Dexter. Id. PP 9-10.

 Beginning in April 1995, Dexter began using obscene, sexually explicit, and offensive language when addressing Jarman. Id. P 11. For instance, on several occasions and in the presence of others Dexter falsely stated that Jarman had received her job because she had performed oral sex acts for the Mayor of Northlake, and that she was continuing to perform such acts. Id. PP 12-13. Starting in June 1995, Jarman began complaining to Evelyn Sturm about Dexter's inappropriate remarks, and in October complained directly to the Mayor himself. Id. PP 17-18 *fn3" On November 2, Jarman testified about Dexter's offensive conduct before the Finance and Rules Committee of the City Council. Id. P 20. Less than two weeks after this hearing, Northlake passed an ordinance prohibiting harassment of City employees by elected officials. Id. P 21. Dexter did not engage in any further acts of harassment after this point, but he did begin sending letters to the Clerk's Office making complaints about the quality of its work. Id. P 26. On March 4, 1996, Northlake censured, condemned, and fined Dexter for his sexual harassment of Jarman and one other City employee. Id. PP 22-23.

 III. Title VII Claims

 Jarman alleges two separate violations of Title VII: that Northlake tolerated the sexually hostile working environment created by Dexter's behavior, and that Northlake retaliated against her for complaining about Dexter's harassment. We address each of these claims in turn.

 A. Hostile Environment Claim

 Title VII's prohibition against discrimination on the basis of sex includes sexual harassment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). To prevail on a "hostile work environment" claim of sexual harassment against her employer, a plaintiff must prove that: (1) she experienced harassment that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive environment; and (2) traditional principles of agency law would render her employer liable for the harassing conduct. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993) (requiring that harassment be severe or pervasive); Meritor, 477 U.S. at 72 (requiring examination of traditional agency law principles).

 At least for purposes of the present motion, there is no dispute that Jarman can satisfy the first part of this test, but the question of whether Northlake may be held liable for Dexter's conduct warrants further discussion. In a typical sexual harassment case, the plaintiff sues her employer for the harassment perpetrated by one if its employees. This case is unusual, however, because Dexter, as an elected official, was not an "employee" of Northlake. See 42 U.S.C. § 2000e(f) ("The term 'employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof . . . ."). *fn4" The EEOC Guidelines set forth the following rule regarding employer liability for harassment perpetrated by non-employees:

 
An employer may . . . be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer's control and any ...

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