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WILLIAMS v. CITY OF CHICAGO

United States District Court, N.D. Illinois, Eastern Division


July 13, 2004.

KAREN WILLIAMS, Plaintiff,
v.
CITY OF CHICAGO, Defendant.

The opinion of the court was delivered by: RUBEN CASTILLO, District Judge

MEMORANDUM OPINION AND ORDER

This lawsuit raises important issues concerning the ill-advised viewing of internet pornography within the workplace. Unfortunately, the workplace is the Chicago Police Department. As a result of this pornography and other conduct, Plaintiff Karen Williams sued Defendant City of Chicago (the "City") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1-e-17, for sexual harassment and retaliation. The City now requests that this Court grant summary judgment in its favor because no rational trier of fact could find that it harassed or retaliated against Williams. Both parties have also filed motions to strike various submissions. For the reasons provided below, Williams' motion to strike is denied, (R. 44-1), the City's motion to strike is partially denied and partially granted, (R. 50-1), and the City's motion for summary judgment is partially denied and partially granted, (R. 27-1).

RELEVANT FACTS*fn1

  The Chicago Police Department hired Williams as a police officer in December 1986, She was promoted, two years later, to the position of Gang Crime Specialist and started working in Homan Square on Chicago's west side. She was subsequently transferred to Area 2 on Chicago's south side. Williams claims that the City, through its agents, sexually harassed her and then retaliated against her because she complained about the sexual harassment.

  A. Homan Square

  Williams worked the second watch, which is the mid-day shift, at Homan Square. She repeatedly saw Police Officer Richard Heinosch view internet pornography at work.*fn2 (R. 39, Pl.'s Facts ¶¶ 13-14, 16-17, 20.) Officer Heinosch also printed photographs of female arrestees using Williams' computer log-in and, while showing her one of these photographs, asked her if she thought the woman in the photograph "took it up the ass."*fn3 (Id. ¶¶ 11-15.) Williams complained about Officer Heinosch's conduct to Sergeant Steven Caluris in September 1999.*fn4 (Id. ¶ 18.) She also gave him a memo in November 1999 complaining about, among other things, Heinosch's conduct.*fn5 (Id. ¶ 28.) In this memo, she stated that she "can no longer continue to be subjected to what is clearly hostile and discriminatory. . . ." (Id., Ex. 2, Williams Memo.)

  As a result of these complaints, Williams claims that Sergeant Caluris retaliated against her in the following ways. First, he threatened to initiate several Summary Punishment Action Requests, known as SPARs, against her.*fn6 (Id. ¶¶ 22, 25, 27.) Second, he told her she was not entitled to a lunch break.*fn7 (Id. ¶ 23.) Third, he threatened to place her on the third watch, which is the night shift.*fn8 (Id. ¶ 24.) Finally, he lowered her efficiency rating when he reviewed her work performance. (R. 28, Def.'s Facts ¶ 43.) Williams also claims that Lieutenant John Risley retaliated against her by transferring her to Team 8 of Unit 156.*fn9 (R. 39, Pl.'s Facts ¶ 30.) B. Area 2

  In the summer of 2000, Williams was transferred out of Homan Square to the second watch of Unit 620 in Area 2.*fn10 (R. 28, Def.'s Facts ¶¶ 59, 62.) As she did at Homan Square, Williams repeatedly saw pornography — consisting of pictures of a vagina, naked women, naked women claiming to be police officers, naked women urinating, and naked sexually-posed pre-pubescent children — on general-use computers at Area 2.*fn11 (R. 39, Pl.'s Facts ¶¶ 41-45, 71.) Once, when she activated a computer and found a vagina displayed on the screen, unidentified male officers laughed at her. (Id. ¶ 41.)

  In June 2001, Williams complained about her exposure to pornography to Sergeant Yul Cousins, one of her supervisors, after she found links to child pornography websites on an Area 2 computer. (R. 28, Def.'s Facts ¶ 67.) Sergeant Cousins told her the next day that he removed the links, and the associated child pornography, from the computer. (Id. ¶ 69.) On March 15, 2002, Williams telephoned Sergeant Wilkins, another supervisor, from home and complained again about, among other things, pornography at work. (Id. ¶ 73.) Sergeant Wilkins reported her complaint and forwarded it to the Internal Affairs Department, which began investigating this complaint on March 19, 2002.*fn12 (Id. ¶¶ 74, 77.)

  Williams claims that she suffered retaliation because of these complaints and the complaints she made at Homan Square. First, Area 2 Commander Walter Green, transferred her to the third watch in January 2001.*fn13 (R. 40, Pl.'s App., Green Dep. at 66.) Second, Williams' supervising sergeants told her that Commander Green ordered them not to give her any work from January 1, 2001 through at least June 1, 2001.*fn14 (R. 39, Pl.'s Facts ¶ 45.) Third, she was assigned seven different partners from January 1, 2001 through March 2002. (Id. ¶¶ 56-63). Finally, on April 28, 2002, an independent clinical psychologist found her unfit for duty.*fn15 (R. 28, Def.'s Facts ¶ 113.)

  LEGAL STANDARDS

  Summary judgment is appropriate when 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). When determining whether a genuine issue of material fact exists, this Court will evaluate all admissible evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Treadway, 362 F.3d at 975. Yet the non-moving party must produce evidence sufficient to create a genuine issue of material fact for the "elements of her claim on which she bears the burden of proof at trial." Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000). In other words, this Court will only grant summary judgment when a trial is unnecessary because no rational trier of fact could rule in favor of the non-moving party. Buie, 366 F.3d at 502.

  ANALYSIS

  The City has presented three arguments in its motion for summary judgment: (1) all of the Homan Square conduct is barred by the relevant statute of limitations; (2) Williams' hostile work environment claim lacks merit because: (a) none of the conduct was directed at her because of her sex and (b) there is no basis for holding the City liable; and (3) Williams' retaliation claim lacks merit because: (a) Williams did not suffer an adverse employment action and (b) Williams failed to identify a similarly-situated employee who was treated more favorably. For the reasons provided below, we only agree with the City's final argument.

  I. Statute of Limitations

  Title VII, specifically 42 U.S.C. § 2000e-5(e), requires a plaintiff to file a charge with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged harassment. Hall v. Bodine Elec. Co., 276 F.3d 345, 352 (7th Cir. 2002). Acts that occurred more than 300 days earlier than the EEOC filing are not actionable unless, under the continuingviolations doctrine, they are linked to subsequent acts that occurred within 300 days of the EEOC filing. Id. The continuing-violations doctrine often applies to hostile work environment claims because they necessarily involve a series of acts that constitute one unlawful employment practice. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-17 (2002). The otherwise time-barred acts, however, must be related to the timely acts. Id. at 118. An "intervening action" by an employer, however, can break the relation between time-barred and timely acts.*fn16 Id.

  Williams filed her EEOC charge on April 2, 2002, so all the acts that occurred before June 7, 2001 are time-barred if the continuing-violations doctrine is inapplicable. The City claims that everything that occurred at Homan Square is time-barred because Williams' transfer to Area 2 was an intervening action that differentiates the Homan Square acts from the Area 2 acts.*fn17 The City relies principally on Costanzo v. United States Postal Service, No. 00 C 5044, 2003 WL 1701998, at *11 (S.D.N.Y. March 31, 2003), to argue that an internal transfer from one work team to a different work team is a Morgan "intervening action." The Costanzo court, however, found that the plaintiff's transfer "clearly changed" her working conditions and that the time-barred acts had no relation to the timely acts. Id. Like Costanzo, Williams' transfer changed her work location, but unlike Costanzo it did not significantly change her working conditions; in particular her exposure to workplace pornography remained constant. Additionally, the harassing conduct that was directed at Williams in Homan Square and Area 2 — asking inappropriate sexual questions to provoke a response and laughing at Williams' discovery of pornography on a general-use computer — are also related to each other. Accordingly, the time-barred acts are sufficiently related to the timely acts to preclude Williams' transfer to Area 2 from being a Morgan "intervening action." Therefore, under the continuing-violations doctrine the Homan Square conduct is actionable.

  II. Sexual Harassment

  Under Title VII, specifically 42 U.S.C. § 2000e-2(a)(1), it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ." Williams is proceeding under a hostile work environment theory of sexual harassment. A prima facie hostile work environment claim consists of the following four elements: (1) unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) conduct that was severe or pervasive enough to create both a subjective and objective hostile work environment; (3) conduct that was directed at the plaintiff because of the plaintiff's sex; and (4) a basis for employer liability. Rhodes v. III. Dept. of Transp., 359 F.3d 498, 505 (7th Cir. 2004). To survive summary judgment, Williams must identify a material disputed fact with respect to each element of her prima facie case. See Robinson v. Sappington, 351 F.3d 317, 329 (7th Cir. 2003). The City claims that it is entitled to summary judgment with respect to Williams' hostile work environment claim because: (1) no conduct was directed at Williams because of her sex; and (2) there is no basis for holding the City liable. A. Discrimination Because of Sex

  The City claims that Williams' hostile work environment claim lacks merit because no conduct was directed at Williams because of her sex. Harassment only constitutes discrimination because of sex if it exposes members of one sex to "disadvantageous terms and conditions of employment to which members of the other sex are not exposed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg J., concurring)). Therefore, "inappropriate conduct that is inflicted on both sexes, or inflicted regardless of sex" is outside Title VII's scope because this type of "bad workplace behavior [] cannot be labeled discriminatory." Holman v. Ind., 211 F.3d 399, 404-05 (7th Cir. 2000) (citing Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982) (stating that conduct that is "equally offensive to male and female workers" is not harassment because of sex)). For example, in Holman the Seventh Circuit held that a supervisor, who solicited sex from a male and a female employee was not discriminating against them because of their sex because his solicitations were not caused by their sex. Id.

  Williams has not alleged that any of the pornography she viewed was directed at her. She has not alleged that her colleagues were viewing pornography in order to make her feel uncomfortable or for any other reason related to her. The record indicates that her colleagues were viewing pornography at work for their own prurient gratification. While pornography in the workplace likely has a greater negative impact on female employees than on male employees, its mere presence in the workplace affects everyone "regardless of sex."*fn18 Id. Williams' claim, however, is not limited solely to pornography in the workplace. A co-worker showed her a picture of a female arrestee and asked her if she thought the woman "took it up the ass," and other colleagues laughed at her when she found a picture of a vagina on a general-use computer. A jury could infer that her colleagues left this picture on the computer intending or hoping that she would see it. Accordingly, we hold that a rational jury could find that some of the conduct underlying Williams' hostile work environment was directed at her because of her sex. In conjunction with this type of targeted conduct, workplace pornography contributes to her hostile work environment claim because a hostile work environment is determined by the totality of the circumstances. Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1045 (7th Cir. 2000). Therefore, the City is not entitled to summary judgment on this ground.

  B. Basis for Liability

  An employer can be liable for a hostile work environment claim if the plaintiff was sexually harassed by a supervisor — an individual who possesses the authority to directly affect the plaintiff's employment terms and conditions — or a co-worker. Hall, 276 F.3d at 355-56. If the plaintiff was harassed by a supervisor the employer is vicariously liable for the supervisor's actions, and if the plaintiff was harassed by a co-worker the employer is liable if it was negligent in discovering or remedying the harassment. Id. We have already found that Williams' coworkers directed sexual comments at her and laughed at her when she discovered pornography on a general-use computer. We can also infer from the fact that Williams' repeatedly found pornography on general-use computers that her co-workers were at least partly responsible for the presence of these images. Additionally, Williams labels all of her supervisors' actions as retaliation rather than sexual harassment so has presented no evidence that her supervisors contributed to her hostile work environment. Therefore, to survive summary judgment Williams must show that there is a genuine fact issue as to whether the City was negligent in discovering or remedying the harassment.

  The City asserts that summary judgment is appropriate because it has a detailed sexual harassment policy and because it promptly responded to both of Williams' Area 2 complaints. These actions, however, do not establish as a matter of law that the City was not negligent in discovering or remedying the harassment. First, it is disputed whether Williams complained to Sergeant Caluris or gave him the November 1999 memo. If the jury concludes that Williams complained or gave him that memo, then the jury could conclude that the City was negligent in remedying the harassment. Second, the prevalence of internet pornography and the City's knowledge of this pornography are also disputed. If the jury determines that pornography was so prevalent that the City should have known about it, the jury could conclude that the City was negligent in discovering the harassment. Similarly, if the jury determines that the City knew about the pornography because others had complained about it, the jury could conclude that the City was negligent in remedying the harassment. Finally, the existence of the sexual harassment policy cannot shield the City from liability, especially when the City does not claim that Williams failed to invoke the policy and when a jury could conclude that Williams' supervisor failed to respond to Williams' complaints. Accordingly, we find that a rational jury could find the City negligent in discovering or remedying the harassment. Therefore, the City is not entitled to summary judgment on this ground.

  In sum, we deny the City's motion for summary judgment on Williams' hostile work environment claim.

  III. Retaliation

  Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a), prohibits employers from taking an adverse action against an employee because she complained about sexual harassment. Little v. Ill. Dept. of Revenue., 369 F.3d 1007, 1011 (7th Cir. 2004). There are two ways a plaintiff can establish a retaliation claim; the direct and indirect method. Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 786-88 (7th Cir. 2004); Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003). Williams is proceeding only under the indirect method.*fn19

  To survive summary judgment under the indirect method, Williams must establish a prima facie case of retaliation. To do so she must identify a genuine issue of material fact with respect to each of the following elements: (1) she engaged in a statutorily-protected activity; (2) she met her employer's legitimate expectations; (3) she suffered a materially adverse employment action;*fn20 and (4) she was treated less favorably than a similarly-situated employee who did not engage in statutorily-protected activity. Little, 369 F.3d at 1011. If Williams establishes her prima facie case, the City is nonetheless entitled to summary judgment if it presents unrebutted evidence that the adverse employment action was not retaliatory. Id. The City claims that it is entitled to summary judgment on Williams' retaliation claim because Williams has not created a genuine issue of material fact with respect to whether she suffered an adverse employment action or whether she was treated less favorably than a similarly-situated employee.

  A. Adverse Employment Action

  The City asserts that Williams failed to identify an adverse employment action. An adverse employment action is an act taken by the employer that: (1) diminishes the financial terms of an employee's employment; (2) diminishes an employee's career prospects, such as a job change or a nominally-lateral transfer; or (3) alters an employee's working conditions in a "humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative" manner that could objectively be characterized as a "hardship." Herrnreiter, 315 F.3d at 744. We have already determined that Williams' retaliation claim is based on the following acts: (1) disciplinary threats; (2) the denial of a lunch break; (3) shift-change threats; (4) an unfavorable review; (5) a transfer to a different unit; (6) a transfer to a different shift; (7) the denial of work assignments; (8) frequent partner reassignment; and (9) being found unfit for duty. While many of these acts are not adverse employment acts, the denial of work assignments is a job change that diminished Williams' career prospects. See Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994) (stating that stripping an employee of all duties "would be adverse for all but those completely devoid of ambition or the need to be challenged"). Therefore, Williams has identified a genuine issue of material fact, and the City is not entitled to summary judgment on this basis.

  B. Similarly-Situated Employee

  The City also claims that Williams has failed to identify a genuine issue of material fact with respect to whether she was treated less favorably than a similarly-situated employee. A similarly-situated employee is an employee who is comparable to Williams in all material respects: performance, qualifications, and conduct. Durkin v. City of Chi., 341 F.3d 606, 614 (7th Cir. 2003). We do not have to address the question of whether an employee is similarly situated because Williams fails to identify one; she compares herself to "others" without identifying them or explaining how they are similar to her. (R. 37, Pl.'s Resp. at 15.) "[U]ncorroborated generalities are insufficient to support a Title VII claim." Oest v. Ill. Dept. of Corr., 240 F.3d 605, 615 (7th Cir. 2001). Therefore, the City is entitled to summary judgment on this ground.

  CONCLUSION

  We have decided three motions in this opinion: Williams' motion to strike, (R. 44-1), the City's motion to strike, (R. 50-1), and the City's motion for summary judgment, (R. 27-1). We deny Williams' motion to strike, (R. 44-1), partially grant and partially deny the City's motion to strike, (R. 50-1), and partially grant and partially deny the City's motion for summary judgment, (R. 27-1.) Williams' hostile work environment claim survives summary judgment, but her retaliation claim does not because she failed to establish a genuine issue of material fact with respect to the similarly-situated element of her prima facie case. While we sympathize with Williams' efforts to obtain some relief for the retaliation she believes she suffered, our sympathy does not permit us to make her case for her by scouring the record for admissible evidence. Nor, at this stage of the proceedings, can we allow her to rely solely on uncorroborated generalities. A status hearing to set a firm trial date will be held on July 29, 2004 at 9:45 a.m. The parties are again requested to fully exhaust all remaining settlement possibilities.


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