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MURRAY v. KUTZKE

January 21, 1997

MEGAN MURRAY, Plaintiff,
v.
CHIEF LEON R. KUTZKE, DEPUTY CHIEF STEVEN WILLIAMS, LIEUTENANT DANE CUNY, LIEUTENANT DANIEL NEUSTADT, SERGEANT SCOTT WATKINS, SERGEANT JAMES GLENNON, OFFICER KARL ALAGNA, OFFICER MARILYN JOHNSON, OFFICER SCOTT HEIM, OFFICER DANIEL MARCINIAK, individually and in their official capacities as employees of the Village of Lombard, and the VILLAGE OF LOMBARD, a body politic, Defendants.



The opinion of the court was delivered by: SHADUR

 Former Village of Lombard ("Village") Police Officer Megan Murray ("Murray") has brought this sexual harassment and sex discrimination case against Village and several of Murray's former co-workers. Fed. R. Civ. P. ("Rule") 56 motions for summary judgment have been filed by all of the remaining individual defendants ("Individual Defendants") *fn1" as to some or all of Murray's claims in which they are named. For the reasons set forth in this memorandum opinion and order, the motions are granted in part and denied in part.

 Facts

 Individual Defendants' current motions address only some of Murray's claims and thus raise only limited issues. Consequently, where any potential factual issue is not relevant to the motions, the factual discussion here is based upon the allegations in Murray's First Amended Complaint ("FAC"). Otherwise the facts are taken from the evidence submitted on the Rule 56 motions.

 Murray was employed as a probationary police officer by Village from March 15, 1993 to early December 1994. Leon Kutzke ("Kutzke") was Chief of Village's Police Department ("Department") throughout Murray's tenure there. *fn2" Other Individual Defendants either acted as Murray's supervisors or were fellow officers.

 On May 17 Officer Scott Heim ("Heim") complained orally to Glennon about Murray's handling of a domestic disturbance call to which Heim and Murray had responded. Heim's criticism was that Murray seemed confused about the law and department policy as to domestic violence cases and showed poor judgment in failing to arrest the male suspect promptly. At Glennon's request Heim prepared a memo about the incident (Heim Ex. 2). Neither Heim nor Glennon discussed the memo with Murray, although it was placed in her personnel file. Murray disputes Heim's version of the incident and contends that Heim wrote the memo at the request of Glennon, who was allegedly retaliating against her for her harassment complaints about him.

 On June 3 Deputy Chief Steven Williams ("Williams") informed Murray that she was being placed on 90-days' "super probation," the purpose of which is disputed. *fn4" Murray contends that she was being retaliated against for complaining about Glennon's and Watkins' discriminatory and harassing behavior and that Heim's memo was the justification for placing her on super probation. Individual Defendants assert that super probation was only intensified supervision of a remedial nature, that it was based on concerns about Murray's performance and on the perception that she could not get along with her supervisors and that it was unrelated to her complaints. They contend that Heim's memo was also unrelated to the decision, and Murray admits that she was not told what had triggered her super probationary status.

 During their June 3 meeting Williams and Murray had some discussion about harassment and discrimination, and he told her that she should take her complaints to the Village Attorney or the Village Manager. On June 14 Murray made a formal complaint to the Assistant Village Manager and the Village Attorney *fn5" about Glennon's and Watkins' conduct.

 On July 19 Murray filed a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC"). In it she named "City of Lombard Police Department" as the only respondent. Murray's narrative description of the discriminatory conduct did not identify any individual by name or position, nor did it describe any specific incident of discrimination (except for her super probation status).

 During the super probation period Glennon was assigned as Murray's supervisor. On July 5 Murray was injured while subduing a suspect alone. She alleges that Glennon sat in his squad car and refused to provide back-up for her in retaliation for her complaints about him. As a result of her injury, Murray was unable to work for several months (she did not return until October 31). Murray claims that Kutzke pressured her physician into releasing her to return to work before she was physically ready, while Kutzke asserts that he questioned her physician's refusal to permit her to return only after a physician hired by Village had found her able to work.

 On November 23 Murray had filed a second EEOC charge, this time asserting sex discrimination, retaliation and sexual harassment. Again she named "City of Lombard Police Department" as the only respondent. Although her narrative did relate a few specific incidents, once again she did not identify any individuals by name or position. Then on December 19 she filed a third charge, alleging retaliation. This time she named Individual Defendants as respondents along with "Village of Lombard Police Department."

 Murray's FAC contains claims against all remaining defendants except Heim of sexual harassment under Title VII *fn8" (Count I), sex discrimination under Title VII (Count II) and retaliation under Title VII (Count III). It also asserts claims against all remaining defendants (including Heim) of discrimination in violation of Section 1983 (Count IV) and intentional infliction of emotional distress (Count V). In addition it asserts a slander claim against Glennon.

 At this point all named Individual Defendants seek summary judgment on Counts I through III on the ground that they were not named as respondents in Murray's EEOC charges. Kutzke also moves for summary judgment on all counts because he says he did not personally participate in the alleged discriminatory conduct. Heim seeks summary judgment on Count IV on the ground that Murray lacks proof of an essential element of her claim and on Count V on the ground that the evidence is insufficient as a matter of law.

 Summary Judgment Principles

 Rule 56(c) permits summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." For that purpose this Court does not weigh the evidence submitted by the parties or determine the truth of asserted matters ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). All facts must be viewed and all reasonable inferences drawn in the light most favorable to the non-movant ( Transamerica Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir. 1992)). "If no reasonable ...


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