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CARL v. PARMELY
June 28, 2001
DAWN CARL, PLAINTIFF,
RODNEY PARMELY AND THE CITY OF METROPOLIS, A MUNICIPAL CORPORATION, DEFENDANT.
The opinion of the court was delivered by: J. Phil Gilbert, District Judge.
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 &
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.
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
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
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.
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
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
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.
After his suspension, Parmely returned to his position as assistant
street commissioner and implied to Carl that there was nothing she could
do to get rid of him because of his political connections with the City.
Apparently not learning his lesson, Parmely's behavior recommenced.
Beginning in mid-February 1998, Parmely made "sexually obscene" gestures
tongue towards Carl at least twice a day until late June 1998.
On March 11 and June 24, 1998, Parmely parked in front of Carl's house
and on March 24, 1998, commented that a female houseguest of Carl's
"looked good." In April 1998, Parmely told Carl that she "fill[ed] out
her shirt real good," and assigned her to pick up concrete blocks,
telling her that he thought she would be able to perform that task
because she was a "big chested woman." Finally, on June 10, 1998, Parmely
remarked that Carl had many men at her house and that she must be trying
to decide between them.
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.
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
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 ...