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May 12, 2003


The opinion of the court was delivered by: Joan Humphrey Lefkow, United States District Judge


Counts I, III, and V of this multi-count case are brought against defendant State of Illinois Department of Human Services ("IDHS") by three of its employees, Donna Presto, Diana Lefebvre and Virginia Mouton (who will be referred to herein by their surnames). Before the court is IDHS's motion for summary judgment on these claims, which are "hostile work environment" sexual harassment claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. The motion is based on IDHS's affirmative defense that it is not liable for sexual harassment by its former employee and co-defendant, Dennis Bailey ("Bailey").*fn1 IDHS also rests on its affirmative defense that the doctrine of laches bars Presto's and Mouton's claims. This court has jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3). For the reasons set for below, the court denies the motion.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine issue of material fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


IDHS*fn2 employs approximately 20,000 employees throughout the State of Illinois, including 1,000 employees at the William A. Howe Developmental Center (the "Howe Center") in Tinley Park, where the facts giving rise to this law suit took place. The Howe Center serves as a direct care facility for 480 persons who are commonly referred to as residents. The residents are developmentally disabled and have mild to profound mental retardation. One-third of the residents are also mentally ill and one-quarter of the residents have physical disabilities.

A. The Howe Center Operational Structure

The residents live in "houses" at the Howe Center. At all relevant times, Lefebvre, Mouton and Presto worked the night shift in the houses as Mental Health Technicians. Mental Health Technicians are responsible for "caring for, treating, and habilitating" the residents and "are not members of management." (Dukes Aff. ¶ 6.) Lefebvre worked for IDHS from 1994 until late 1999, when she took an educational leave of absence. Mouton has worked for IDHS from 1982 to present. Presto has worked for IDHS from 1988 to present. At all relevant times, Lefebvre worked part-time from 6:00 a.m. to 10:00 a.m. and Mouton and Presto worked from 11:00 p.m. to 7:00 a.m.

The Howe Center has 40 separate houses. Ten houses form a "unit." Each unit has a "Unit Director" ("UD"), who is responsible for the overall supervision of all employees within the unit. The UD may recommend that an employee be promoted, demoted, disciplined or discharged subject to the collective bargaining agreement between the Illinois Department of Central Management Services ("CMS") and the employee's union. Presto's UD from 1996 to June 1999 was Dianne Kariotis and from June 1999 thereon was Dorothy Carlson ("UD Carlson"). Lefebvre's and Mouton's UD was UD Carlson.

The UD is the direct supervisor of the "Living Unit Administrator" ("LUA"), who oversees three to four houses in a unit. IDHS represents that the LUAs are primarily responsible for assigning work to the Mental Health Technicians as well as the hiring, firing, demoting, promoting and disciplining of the Mental Health Technicians. Moreover, plaintiffs acknowledge that their LUA was their "immediate supervisor" (Mouton Dep. at 23), "supervisor" (Lefebvre Dep. 46-47) and/or the individual who had the authority to hire, fire and discipline or change the work assignments of Mental Health Technicians (Presto Dep. at 47-48). Although LUAs generally work during the day, they have 24-hour responsibility over their respective houses and may be reached via pager. For Presto, her LUA was Ora Cotton from 1996 to June 1999 and Paulette Taylor ("LUA Taylor") from June 1999 thereon. Lefebvre's and Mouton's LUA was LUA Taylor from 1997 to 1999.

B. Bailey's job responsibilities

Bailey began working for IDHS at the Howe Center in 1977. From 1988 to August 6, 1999, Bailey was the "Night Shift Supervisor,"*fn3 where he supervised Mental Health Technicians working the night shift, including plaintiffs. Bailey's supervisor was the night Administrator, who is the equivalent of a LUA. (PL. L.R. 56.1 ¶ 5.) Louis Volpi ("Volpi") served as the night Administrator from 1995 to 1996 and Kathleen Koch ("Koch") served as the night Administrator from 1996 to 1999. The night Administrator is supervised by a UD. From approximately 1997 to July 1999, Bruce Thompson ("UD Thompson") was the UD responsible for the night Administrator and four to five Night Shift Supervisors including Bailey.

IDHS proffers that, as the lowest level supervisor at the Howe Center, Bailey was responsible only for monitoring the work activities of Mental Health Technicians, providing them with in-service training and processing their requests for supplies and materials. At the request of the LUA or UD, Bailey could "counsel" a Mental Health Technician, but counseling was not considered discipline either by IDHS or under the collective bargaining agreement.

Bailey, however, could submit written staff statements, known as "write ups," regarding allegations of employee misconduct. (Def L.R. 56.1 ¶ 71.) At issue between the parties is whether Bailey's write ups were a form of discipline; thus, making him a supervisor for Title VII purposes.*fn4 According to IDHS, all employees, including Bailey, are instructed to submit write ups when they perceive misconduct. (Id.) IDHS asserts that a write ...

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