("Watkins") and Sergeant James Glennon ("Glennon"). She has alleged that Glennon sexually harassed her and that both Glennon and Watkins engaged in sex-based discrimination against her in work assignments, assistance and criticisms of her performance. In the spring of 1994 Murray complained to others in her chain of command about Glennon's and Watkins' behavior. She alleges that the offensive conduct ceased briefly and then resumed.
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.
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
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.
Murray was terminated in early December after an internal investigation into an October 23 incident at her home in which she had called 911 after an argument with married co-worker Michael Shackel ("Shackel").
Kutzke had ordered the investigation after receiving a report from the Wheaton Police Department, which had responded to the 911 call, and after reviewing the report of an informal internal inquiry conducted by Lieutenant Dane Cuny ("Cuny"). According to Kutzke, the discrepancies between the story told by the Wheaton officers and the stories that Murray and Shackel told to Cuny raised serious questions about Murray's and Shackel's truthfulness. Murray and Shackel had said that Murray had found a male intruder in her home, that the intruder had fled and that Shackel had just arrived to comfort her. Kutzke says that on that basis as well as Murray's past performance problems he made the decision to terminate her, and on November 28 he obtained permission from the Board of Fire and Police Commissioners to do so. When interviewed as part of the formal internal investigation on November 30, Murray admitted that she and Shackel had lied about his whereabouts just before the 911 call (he had actually attended a wedding with her) and about the reason for the call (they had had an argument), and that those lies were occasioned by the fact that he was a married man. After Murray refused to resign, Kutzke terminated her on December 7.
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
(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 jury could find for the party opposing the motion, it must be granted" ( Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995), citing Anderson, 477 U.S. at 248)).
Counts I, II and III
Individual Defendants (other than Heim) argue that Murray's Title VII claims in Counts I through III are barred as against them because she did not name them as respondents in her EEOC charges. It is well established that in the absence of the special circumstances identified later in this paragraph, a Title VII plaintiff may sue only persons or entities named in the administrative charge ( Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991)). That requirement serves to provide notice to those charged with discrimination so that they may participate in the conciliation process ( Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989)). There is a limited exception to that requirement where the narrative portion of the charge also sufficiently identifies undesignated respondents by name or description, so that those persons effectively receive notice that the charge is also leveled against them ( Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 906 (7th Cir. 1981)).
Murray's first two EEOC charges (D. Exs. F and G) neither named any Individual Defendant as a respondent nor described any of them in the narrative in a manner that would permit their identification. Consequently Murray's Title VII claims based on those two EEOC charges (FAC Counts I and II) are barred as to Individual Defendants. Their motion for summary judgment is therefore granted as to those counts.
Murray's third EEOC charge (D. Ex. H), which asserts retaliation as to her termination, is more problematic. She identified Individual Defendants as respondents by noting "See Attachment" in the appropriate box on the form. In turn the "Attachment" named each of the Individual Defendants but listed only Department's street address. Despite that reference to Individual Defendants, none of them was served with notice of the charge.
That situation poses two obvious questions:
1. Did EEOC or Murray bear the burden of serving the third EEOC charge on the named respondents (Individual Defendants)?