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CARL v. PARMELY

June 28, 2001

DAWN CARL, PLAINTIFF,
v.
RODNEY PARMELY AND THE CITY OF METROPOLIS, A MUNICIPAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: J. Phil Gilbert, District Judge.

          MEMORANDUM AND ORDER

This matter comes before the Court on the motion of defendant City of Metropolis ("City") for summary judgment on Counts II, III, VII, VIII and XV (Doc. 39). Plaintiff Dawn Carl ("Carl") has responded to the motion (Doc. 46), and the City has replied to her response (Doc. 49). The Court also addresses the City's Motion for Leave to File a Reply in Excess of Five Pages and for Leave to File a Response to Plaintiff's Statement of Contested Facts (Doc. 51) and four motions in limine (Docs. 52, 53, 54 & 55).

I. Motion for Leave to File

The Court will grant the City's request for leave to file a reply in excess of five pages and will deny its request to file a response to Carl's statement of contested facts (Doc. 51). The Court has not considered the Response to Plaintiff's Statement of Contested Facts in ruling on this motion.

II. Summary Judgment Standard

Summary judgment is appropriate where "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." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396. This standard is applied with special scrutiny in cases, such as employment discrimination cases, that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.

III. Facts

A. Carl's Employment

Carl worked for the City as a laborer in the City's street department from June 29, 1997, through March 13, 2000. The terms of her employment were governed by a collective bargaining agreement with her union.

Carl had a commercial driver's license ("CDL") and, as a part of her job, drove vehicles requiring such a license such as the street sweeper. Beginning in the fall of 1997, Carl was the alternate street sweeper operator, which entailed filling in for the regular street sweeper operator when she was not available. During the first several months after the City purchased the street sweeper in the fall of 1997, Carl drove it 20 to 30 times because the regular street sweeper operator did not have her CDL yet and because Carl needed training to get used to driving it. Operating the street sweeper did not increase Carl's pay. Because she used her CDL for City work such as driving the street sweeper, she was subject to random drug testing conducted for the City by an outside organization. The City played no part in determining who was to be randomly tested.

During the time Carl worked for the City, Parmely also worked in the street department and held the position of assistant street commissioner. Parmely supervised Carl in her daily activities, and she considered him to be her boss. He did not, however, have the authority to discipline, hire, fire or approve leave for laborers such as Carl. Both Carl and Parmley were also supervised by Paul Johnston, the City's public works director. Johnston was responsible generally for assigning work to street department workers.

The entire time that Carl worked for the City, the City maintained a non-harassment policy forbidding sexual harassment. In fact, Carl knew from the beginning of her employment that sexual harassment was not permitted by the City. The policy instructed anyone who believed she was the subject of harassment to report the incident as soon as possible to her department head, Mayor Beth Ann Clanahan ("Clanahan"), or Clanahan's administrative assistant. The policy required that complaints be investigated and discipline be imposed, if warranted. Carl was given a copy of the policy when she began working for the City in June 1997 and again in January 1998. The policy was also posted on a bulletin board where street department employees worked. When Clanahan discovered in late January 1998 that the policy had been removed from the bulletin board, she replaced it and admonished City employees not to remove it.

B. Parmely's Behavior

Shortly after Carl began working for the City, Parmely began a course of behavior that Carl found offensive and sexually harassing. For example, on July 8, 1997, Parmely leaned over Carl and touched her with his shoulder and arm while they were in the passenger compartment of a truck and told a third person that they were going to the cemetery, a code phrase for engaging in sexual behavior. He also made other references to the cemetery in connection with Carl. Carl also alleges without reference to any admissible evidence contained in the record that in July and August 1997 Parmely told co-workers that Carl was Parmely's girlfriend.*fn1 On January 12, 1998, Parmely placed his hand on Carl's breast for one to two minutes while giving her a work assignment and kept his hand there even as she backed away. Several days later, while Carl was sweeping the garage, Parmely ran his hand from Carl's hairline through her hair to fan it out.

C. The City's Response

On January 16, 1998, Carl told two fellow employees that Parmely had behaved in ways that she believed inappropriate. Those employees told Clanahan, who met with Carl later the same day to discuss Carl's complaints. At Clanahan's request, Carl prepared a list of eight specific incidents involving Parmely from July 8, 1997, to January 20, 1998, and several general behaviors of Parmely's that Carl found offensive. Carl had not complained about Parmely's behavior before this time. Carl filed a grievance through her union on January 23, 1998, about the same incidents.

Clanahan began investigating Carl's complaints. To aid in her investigation, Clanahan placed Parmely on administrative leave for two days, January 22 and 23, 1998. As a result of her investigation, she suspended Parmely without pay from January 26 to 30, 1998. Carl's union was satisfied with this response to Carl's sexual harassment grievance and did not pursue the matter further.

On January 28, 1998, during Parmely's suspension, Clanahan met again with Carl to discuss the results of the investigation and asked her to report any future problems with Parmely to Clanahan on the same day that the problems arose. Carl agreed to do so. Clanahan reiterated her request to be informed immediately of future incidents involving Parmely in a letter to Carl dated January 29, 1998. Carl made no such reports until July 15, 1998.

In the meantime, the City took several additional steps to prevent sexual harassment in the workplace. First, on January 30, 1998, Clanahan met with City employees in the public works department, which included the street department, about the City's non-harassment policy. Parmely did not attend the meeting because he was suspended on that day. Clanahan took this opportunity to distribute copies of the non-harassment policy. Second, Clanahan met with Parmely after his suspension about his behavior, instructed him orally and in writing not to make personal comments to Carl and gave him a copy of the non-harassment policy. Parmely acknowledged that he had received a copy of and understood the policy. Third, the City required all employees, including Parmely, to attend training regarding the non-harassment policy in February 1998. Fourth, Clanahan followed up with Carl several weeks after Parmely returned from his suspension to ensure than no other problems had arisen with respect to Parmely. Carl reported that nothing had happened, and Clanahan again instructed Carl to report immediately anything that made her uncomfortable.

Within several days of speaking with Clanahan in January 1998 about Parmely, Carl was tested for drugs for the first time in connection with her CDL. The City did not assign Carl to drive the street sweeper after her complaint to Clanahan.

D. Parmely's Return

On June 10, 1998, Carl filed a charge with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR").

On July 7, 1998, the City disconnected the radio in the City vehicle that Carl drove.

On July 15, 1998, in an unrelated investigation of Parmely, Clanahan spoke with Carl about Parmley. At that time, Carl reported that Parmely had continued with his offensive behavior after his January 1998 suspension and that she had kept a diary of his behavior. Via memorandum dated July 23, 1998, Clanahan again asked Carl to report problems with Parmely to her immediately and directed Carl to submit a written statement regarding Parmely's post-suspension offensive conduct before the end of the following work day. Carl responded with a written statement complaining of nine incidents involving Parmely from February 17 to July 22, 1998. Parmely was suspended without pay from July 15 to 30, 1998. Carl alleges without reference to any admissible evidence contained in the record that while Parmely was suspended he came to the front of her house, said he would return to work the following Monday, and asked her if she had missed him. Carl amended her EEOC and IDHR charge on September 29, 1998, to allege additional acts of sexual harassment by Parmely and to allege retaliation by the City.

Within a week of speaking with Clanahan in mid-July about Parmely, Carl was again tested for drugs in connection with her CDL. Carl has presented inadmissible hearsay testimony that Parmely told two of Carl's coworkers not to speak with her because she would get them in trouble; they apparently did not heed his advice. She also alleges without any admissible evidence that Parmely assigned her worse tasks after her complaints than he had before her complaints, although all the tasks he assigned her were within the laborer job description.

E. Carl's Suspension

In December 1998, Carl was assigned to attend to a City brush fire. Clanahan saw Carl sitting in a vehicle while watching the fire and instructed her that she should stand outside to perform that task. Nevertheless, Carl continued to sit inside her own personal vehicle for the assignment. At the end of the day, she replenished the gas she used to keep her car running with gas belonging to the City, as she had been authorized to do when she used her personal vehicle for a specific work assignment in the summer of 1997. However, she had not been specifically authorized to use her personal vehicle for the December 1998 work, to sit inside a vehicle while attending to the fire, or to replenish her gas tank with the City's gas. Clanahan suspended Carl without pay from January 8 to 18, 1999, citing Carl's unauthorized use of City gas in her personal vehicle and for remaining inside the vehicle while tending the fire despite specific instructions not to. The City was not aware of anyone else who replenished their personal gas tank with City gas after using their personal vehicle to attend to a City fire.

Carl filed a new EEOC/IDHR charge on June 3, 1999, alleging retaliation.

In July 1999, Clanahan placed Carl on "proof status" because she had taken significant sick leave for a broken leg. "Proof status" required Carl to submit a doctor's note whenever she was absent because of illness. Clanahan had failed to remove Carl from "proof status" until after November 1999, the first day of her deposition relating to this lawsuit, but had not ...


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