a hostile work environment." Faccio-Robert v. Empress River
Casino, 80 F. Supp.2d 918, 919-20 (N.D.Ill. 2000). This is one of
those circumstances, whether the extortion was of sex or of
Second, even without the quid pro quo harassment, Officer
Gurski's behavior would be bad enough for hostile work
environment harassment. He was not merely an insensitive boor. He
touched Ms. Simon in an unwanted way, barraged her with prurient
and salacious remarks about her sexual life and other women,
hinted that they should date, if not do other things, and
occupied 80% of their time together with this sort of behavior.
That kind of conduct can create an intimidating, hostile and
offensive workplace for women. So it is quite inapposite to argue
from cases where some but not all of these sorts of misconduct
are present that because lesser vulgarity was not harassment that
greater misbehavior where they are all present together was not
sexual harassment. It was indeed sexual harassment.
The City argues as well that it should be held harmless for
whatever Officer Gurski might have done under the law governing
vicarious employer liability for sexual harassment. An employer
is subject to vicarious liability for sexual harassment by a
supervisor. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. The City
argues, first, that it is not vicariously liable because Officer
Gurski was not Ms. Simon's supervisor. It quotes the Seventh
Circuit's statement that "the essence of supervisory status is
the authority to affect the terms and conditions of the victim's
employment." Parkins v. Civil Constructors of Illinois, Inc.,
163 F.3d 1027, 1034 (7th Cir1998). According to the City, Officer
Gurski was not part of the City's decision-making hierarchy and
"did not have the power to alter Plaintiff's employment" [sic].
He merely trained new recruits. However, that is sufficient both
in common sense and law. A person assigned to train new recruits
and make recommendations that affect their future employment
status obviously has authority that affects terms and conditions
That is what the Supreme Court concluded in Faragher v. City
of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662
(1998). There a "training captain" who lacked power to hire and
fire or to make daily assignments still counted as a supervisor
for purposes of Title VII. Id. at 781, 808, 118 S.Ct. 2275. In
Ellerth, the supervisor was "not amongst the decision-making or
policy-making hierarchy." 524 U.S. at 747, 118 S.Ct. 2257. Here,
if we ask "whether the employee in question had sufficient
control over the plaintiff to be considered her supervisor,"
Parkins, 163 F.3d.at 1033, the answer must be yes. Officer
Gurski was in a position of authority. She was with him
constantly during training, in which he directed her day to day
activities and evaluated her performance. Therefore, he qualifies
as her supervisor.
Second, the City asserts that it is not liable because it took
prompt remedial action. It maintains a sexual harassment policy.
Officer Gurski was immediately relieved on his training duties
when Ms. Simon's problems were reported by another officer on
December 4, 1997. After an investigation of Ms. Simon's
allegations, Officer Gurski was suspended for ten days beginning
in February 2, 1998. This, the City says, was good enough under
Saxton, 10 F.3d at 535 (same-day investigation, transfer five
weeks later that effectuated no further contact with the victim).
However, the mere existence of a harassment policy does not
automatically shield the employer from liability. Faragher, 524
U.S. at 791, 118 S.Ct. 2275. Citing Sharp v. City of Houston,
164 F.3d 923, 931 (5th Cir. 1999), Ms. Simon argues that a "code
of silence" among police officers, combined with threats of
retaliation for invoking an anti-harassment policy, deprived the
policy of its effectiveness. The "blue wall of silence" is a
well-established phenomenon that may shield police from
investigations and disciplining of misconduct in a variety of
circumstances. See N.Y. City Comm'n to Investigate Allegations
of Police Corruption and Anti-Corruption Proc. of the Police
Dep't, at 27 (July 7, 1994) (quoted in Hon. Harold
Baer, Jr. & Joseph P. Armao, The Mollen Commission Report: An
Overview, 40 N.Y.L.Sch. L.Rev. 73, 82 (1995)). Nor is the
problem restricted to New York City. See United States v.
Ambrose, 740 F.2d 505, 521 (7th Cir. 1984), abrogated on other
grounds by United States v. Pino-Perez, 870 F.2d 1230 (7th Cir.
1989), ("[I]t is a fact . . . that there is a code of silence [in
the Chicago Police Department]."); Myatt v. City of Chicago,
No. 90-C-03991, 1991 WL 94036, at *5-7 (N.D.Ill. May 23, 1991)
(admission of officers of existence of code of silence); McLin
v. City of Chicago, 742 F. Supp. 994, 1002 (N.D.Ill. 1990). Given
Ms. Simon's specific allegations about threats of
retaliation,*fn1 this is a material question of fact.
The City invokes Saxton, but the case is distinguishable.
There the harasser's transfer involved severing all future
contact with the victim. Here, Ms. Simons brings forth evidence
that she and Officer Gurski would be working the same beat and
would almost certainly be in contact. Naperville is a community
of 125,803, with a police department of about 168 officers, see
www.naperville.il.us/police_overview.htm, and it would seem
plausible that the two officers could be separated. The City
acted promptly without a doubt, and that is to its credit.
However, a rational jury might well conclude that the
disciplinary action it imposed was not remedial or effective
Third and finally, the City invokes the affirmative defenses
available under Ellerth and Faragher. When there has been no
tangible employment action, an employer may avoid liability or
damages by showing by a preponderance of the evidence that the
employer (1) exercised reasonable care to prevent or promptly
correct any sexual harassment, and (2) that the plaintiff
unreasonably failed to take advantage of any preventative or
corrective opportunities the employer provided. Ellerth, 524
U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118
S.Ct. 2275. I have already held that there was tangible
employment action in this case, namely, Officer Gurski's
withholding Ms. Simon's performance evaluations, so the defense
is not available.
But even if the defense were available, the City would not be
entitled to summary judgment on its basis. First, I cannot say as
a matter of law that the City exercised reasonable care to
promptly correct sexual harassment for the same reasons that I
cannot hold as a matter of law that it provided effective
remedial action — the inquiry is essentially the same — namely,
because Officer Gurski was to be assigned to the same beat as Ms.
Simon rather than being transferred so as to sever all contract
between them or otherwise insulate their relations. Second, Ms.
Simon may not have unreasonably failed to take advantage of any
preventative or corrective opportunities the employer offered.
The City argues that she made no official complaint, but if she
had legitimate concerns about retaliation by other officers this
would not have been unreasonable; and she states that she wished
to try to resolve the problem by discussing it with Officer
Gurski first, an eminently reasonable course of action. Moreover,
Ms. Simon did discuss the problem with two fellow officers, one
of whom did report Officer Gurski's conduct to the police
The City's motions for summary judgment on (1) Ms. Simon's
Title VII claims and (2) her Illinois Human Rights Act Sexual
harassment claim are DENIED. I commend Ms. Simon's counsel on an
unusually helpful and well-argued brief in opposition to these