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CONRAD v. CITY OF CHICAGO

February 19, 1997

ELAINE CONRAD, Plaintiff,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Elaine Conrad, a Chicago police officer, filed an amended complaint alleging that defendant City of Chicago violated the Civil Rights Act of 1964, as amended, 42 U.S.C. sec. 2000(e) ("Title VII"), and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by subjecting plaintiff to a continuing course of sexual harassment by her supervisor. Defendant filed a motion to dismiss plaintiff's amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

 STANDARDS

 A complaint should not be dismissed pursuant to Rule 12(b)(6) 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." Hartford Fire Insurance Co., et al. v. California et al., 509 U.S. 764, 113 S. Ct. 2891, 2917, 125 L. Ed. 2d 612 (1993); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court accepts as true all of the plaintiff's well pleaded factual allegations, and gives the plaintiff the benefit of every reasonable inference that may be drawn from those facts. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1979); Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). At the same time, the court is not required to ignore facts set forth in the complaint that undermine the plaintiff's claim or to assign weight to unsupported conclusions of law. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992), cert. denied, 508 U.S. 942, 113 S. Ct. 2421, 124 L. Ed. 2d 643 (1993).

 FACTS

 On April 13, 1987, defendant hired plaintiff as a police officer. On September 25, 1996, plaintiff filed a two-count amended complaint alleging she has been subjected to a continuing course of sexual harassment by her supervisor, Sergeant Patrick Chambers ("Chambers"). Plaintiff alleges the sexual harassment began in February of 1988 when, while riding in a patrol car, Chambers grabbed plaintiff's hand and pulled it toward his lap. Plaintiff alleges that this series of sexually harassing conduct continued over a period of 7 years. On January 4, 1995, plaintiff complained to Lt. Lucius White. Plaintiff alleges when Lt. White did not investigate, plaintiff filed charges against Chambers with the Internal Affairs Division. When Internal Affairs Division did not complete an investigation, plaintiff filed discrimination and retaliation charges with the Equal Employment Opportunity Commission ("EEOC") against defendant on September 15, 1995. Plaintiff alleges submission to Chamber's sexual and retaliatory conduct was a condition of employment, and that defendant failed to take appropriate remedial action.

 Defendant argues that plaintiff's amended complaint is untimely, inadequately pled, and fails to allege why plaintiff could not have known of her purported injury so as to have brought a timely claim. Defendant further asserts that plaintiff fails to state in what way the City did not discharge its legal duty once plaintiff complained.

 DISCUSSION

 COUNT I - TITLE VII

 Title VII requires plaintiffs to file a charge of discrimination with the EEOC no later than 300 days after the alleged violation. 42 U.S.C. s 2000e-5(e). The filing period is strictly applied. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S. Ct. 1723, 1726, 80 L. Ed. 2d 196 (1984). Plaintiff alleges that the sexual harassment began in February of 1988, but she did not file with the EEOC until September 15, 1995. Accordingly, only those claims based on conduct that occurred after November 19, 1994, are timely. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir.1996). Plaintiff specifically alleges only one event that occurred after November 19, 1994 -- Chambers brushed his knees while grinning at plaintiff.

 Plaintiff relies on the continuing violation theory in an attempt to bring all of her claims within the limitations period. In Galloway v. General Motors Service Parts Operations, 78 F.3d 1164 (7th Cir.1996), the court resolved the question of the actionablility of allegedly sexually harassing conduct that occurs outside the statutory limitations period but is related in some way to conduct within that period. The court held that continuing violation claims are subject to standard principles of limitations law, including the discovery doctrine, equitable estoppel and equitable tolling. Id. at 1165-66.

 Therefore, in deciding when a victim of sexual harassment must sue, the discovery doctrine applies: a suit is timely if it is brought "as soon as the harassment becomes sufficiently palpable that a reasonable person would realize she had a substantial clam under Title VII." Id. at 1166. Had plaintiff brought her suit upon discovery of the harassment, plaintiff could have alleged as unlawful the entire course of conduct -- including acts that occurred outside the limitations period -- that made her working conditions "less desirable."

 The Galloway court further reasoned that a plaintiff who is the victim of a long chain of events cannot introduce the whole chain if at any point along the line she would have been aware of her injury but failed to file. Id. at 1166-67. When this occurs, as in the instant case, plaintiff can sue only for acts of harassment that occurred within the limitations period. Id. Therefore, in the instant case, Galloway requires a reexamination of plaintiff's knowledge within the seven year period preceding her filing of the sexual harassment charge. The question essentially becomes whether plaintiff acted with reasonable diligence in discovering her injury.

 Pursuant to Galloway, plaintiff cannot base her suit on conduct that occurred more than 300 days before she filed her EEOC charge (November 19, 1994), unless it could be said that a reasonable person would not have known she had a claim prior to that date. Plaintiff's complaint, however, clearly establishes that she was a victim of actionable sexual harassment no later than June 1993, when several clear-cut incidents of sexual misconduct had already occurred. By that time, plaintiff alleges that she had already been subject to the following: Chambers grabbed her hand and pulled it toward his lap (February 1988); Chambers asked her out and called her "my girl"; Chambers wrote her a note that said, "I love you" (April 13, 1988); plaintiff was transferred to the midnight shift; Chambers told her he had had a vasectomy (November, 1988); plaintiff was reassigned one week later to the less desirable Records Section; Chambers told her "You gave me a hard on this morning"; Chambers walked past her pulling a pen in and out of his mouth while looking at her and grinning; Chambers told her he loved her, wanted to get married and would get a divorce (January 20, 1992); Chambers pointed at his lap and said "Chew on this, bitch" to plaintiff (January 16, 1993); Chambers told her "I think it's time to shoot out your kneecaps" (February 2, 1993); Chambers pointed to his lap and asked plaintiff if she "wanted ...


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