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SILVERMAN v. JOHNSON

MARA SILVERMAN, Plaintiff,
v.
JOSEPH JOHNSON, individually and in his official capacity as Lieutenant of the Northlake Fire Protection District, the NORTHLAKE FIRE PROTECTION DISTRICT, and the CITY OF NORTHLAKE, a Body Politic, Defendants.



The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Mara Silverman filed a complaint against Defendants Northlake Fire Protection District (the "District") and Lieutenant Joseph Johnson alleging denial of equal protection and intentional infliction of emotional distress, and alleging violations of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (Title VII) against the District. The parties have consented to have this Court conduct any and all proceedings in this case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(a). Presently before the Court are Defendants' Motions for Summary Judgment. For the following reasons, the motions are granted in part and denied in part. I. Statement of Facts

  Mara Silverman was employed by Metro Paramedic Services, Inc. ("Metro") and worked as a paramedic for the District on a part time basis from July, 1998 until May 1, 1999, and then on a full time basis from May 1, 1999 until she left the District in October, 2000. While employed full time at the District, Plaintiff alleges that she was subjected to individual acts of sexual harassment as well as to a generally hostile work environment. Plaintiff filed a complaint with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC") on May 27, 2000. Plaintiff named Metro Paramedic Service and Lieutenant Joseph Johnson, one of her shift supervisors, in the complaint. Plaintiff signed the EEOC charge of discrimination on June 5, 2000. On July 26, 2000, Plaintiff amended her charge to include the District. Plaintiff added a further amendment on November 13, 2000, to clarify that the alleged harassment continued until September 17, 2000. The current litigation stems from these charges. Metro Paramedic Service has not been named as a defendant. Before this Court are Motions for Summary Judgment from the District and Lt. Johnson.

  A. Nature of Plaintiff's Employment

  Metro supplies the District with certified paramedics. Under the terms of the contract, Metro guarantees that the paramedics it supplies meet certain eligibility requirements (e.g., certifications and qualifications), but each assigned paramedic is subject to prior approval by the District. The Chief of the District is responsible for interviewing all the qualified applicants and then placing those acceptable applicants on an "eligibility list." The paramedics assigned to the District are drawn from that list. Once assigned, paramedics are "responsible to the Chief of the District and his officers, and subject to their supervision in administrative and logistical matters." (Def.'s Ex. CC.) The District has the authority to refuse services from a paramedic for just cause. The contract clarifies that though paramedics are under the supervision of the District "they are the employees of Metro and Metro shall be responsible for their compensation and benefits." (Id. at 4.)

  Under the terms of the agreement, Plaintiff was assigned to the District as a paramedic and was under the supervisory control of Chief Hjelmgren and his officers. During the period of Plaintiff's full time assignment, the District organized its work schedule into three twenty-four hour shifts, designated red, black and gold. Plaintiff worked primarily the red shift, and occasionally the black shift. The officer in charge of the red shift was Lt. Jimmy Nolan, and the officer in charge of the black shift was Defendant Johnson. Shift supervisors monitor the performance of paramedics and submit any problems with a paramedic's performance to the Chief. (Pl.'s Dep. at 295-96.)

  B. District's Sexual Harassment Policy

  The District has an official Sexual Harassment Policy which was in effect during the relevant period. (Def.'s Ex. G.) The policy adopts the definition of sexual harassment provided in the Illinois Human Rights Act*fn1 and provides numerous examples of discriminatory behavior. The examples include: sexual propositions, overt display of pornographic photographs or literature, and purposefully brushing against another person's body. The policy also provides for both an internal and external complaint procedure.

  The internal complaint procedure provides that an individual victim of harassment should "directly and clearly and immediately" object to the behavior and request that it stop. (Id. at 2.) The individual should also immediately inform the "Shift Officer or the Captain," but if the individual's supervisor is the offending party, then the objection should be expressed to the next level of supervision or the Chief. The policy mandates that each instance of harassment should be documented with a written record of date, time, place, what occurred, and who did it. Once a complaint is filed, the Chief or his designee will investigate, and if the investigation indicates that the individual was harassed then "the District will neutralize the workplace from the offensive conduct and any subsequent retaliation. . . ." (Id.) The remedies available to the District run from reprimand to discharge.

  The policy describes the requirements of an external complaint to the IDHR or the EEOC. The District would prefer to resolve such matters internally. (Id.) The policy spells out the temporal limitations on charges filed with the IDHR and EEOC — 180 and 300 days respectively. The policy also lists some of the broad investigative and subpoena powers of the IDHR and EEOC. The policy also provides all the contact information of the IDHR and EEOC.

  Plaintiff affirmed that she had read and understood the District's Sexual Harassment Policy on July 20, 1999. (Def.'s Ex. H.) Chief Hjelmgren also signed the confirmation. In addition, Plaintiff received training on the policy and was asked afterwards if she had any questions or harbored any confusion about any aspect of the policy. (Pl.'s Dep. at 207-08.) Plaintiff once again affirmed that she understood the policy. In October, 1998, all three shifts of the District received two hours of sexual harassment training. (Def.'s Ex. I.) Johnson attended the training with the rest of Black Shift on October 14, 1998.

  C. Period of Alleged Harassment

  The relevant incidents of alleged harassment began in May or June, 1999, when Johnson called Plaintiff a "slut" and repeatedly used the term "cunt" while in the presence of other firefighters. (Pl.'s Dep. at 97-99.) According to Plaintiff's testimony, this type of behavior continued through the summer of 1999. In June or July, Johnson and other firefighters debated whether Plaintiff or a certain male firefighter had a nicer butt. (Id. at 166-67, 170.) Johnson also told Plaintiff directly, "I want to do you." (Id. at 223-24.)

  Johnson, Lt. Nolan, Zimich and Frick openly expressed their belief that Plaintiff had engaged in sexual activity with firefighters throughout the District. (Id. at 225.) Johnson and other firefighters would often allow Plaintiff to pass ahead of them on the stairs and then comment on the shape of her butt. Between July and November 1999, Johnson and others made comments as Plaintiff entered the shower room such as, "Want me to wash your back?" or "Leave the shower room door unlocked." (Pl.'s Ex. A at 5, 9.) During this period, Plaintiff also alleges that pornographic materials were openly displayed in the firehouse. However, Plaintiff herself contributed several Playboy magazines to the fire station. (Pl.'s Dep. at 164-65.) Plaintiff also discovered a large stash of pornographic material hidden in the ceiling over a bathroom stall. When she showed the materials to the Chief, he responded that "men will be men." (Pl.'s Dep. at 99-100.) In November, 1999, Plaintiff began dating District Firefighter Bob Bailey. This relationship became a topic of conversation within the firehouse. Johnson asked Bailey if the relationship was sexual. (Pl.'s Ex. A at 5.) On one occasion Johnson commented to Plaintiff, "Bailey is spending all this money on you [going] to dinner . . . and you didn't even give him a blow job." (Bailey Dep. at 78.) According to Johnson, Bailey himself offered salacious information to his coworkers regarding his private relationship with Plaintiff. (Johnson Dep. at 187.) Bailey also used one of the Playboy magazines from the firehouse's library to demonstrate "how Mara looks naked." (Id. at 273-74.) In December, 1999, Plaintiff sat down to dinner in a t-shirt wet from a just completed work-out. Bailey subsequently informed her that after she left the table the other firefighters had discussed her nipples. (Pl.'s Dep. at 220-22.) After this incident, some firefighters informed Johnson that such comments were getting back to Plaintiff. (Johnson Dep. at 287-88.)

  In January, 2000, Plaintiff terminated her relationship with Bailey. The break-up engendered animosity towards Plaintiff amongst the other firefighters. Johnson criticized Plaintiff for the break-up, calling her a "bitch," "no good," and "sick in the head." (Pl.'s Ex. A at 5.) At this point, Johnson also expressed that he wanted Plaintiff "out of the firehouse." (Id.) Johnson had often expressed his opinion previously that women did not belong in the firehouse as they were "nothing but trouble," (id. at 6, 11), but after the Bailey incident this opinion was directed specifically at Plaintiff. (Id. at 5.) There is no indication that he wanted Bailey, a male firefighter "out of the firehouse."

  After the break-up with Bailey tensions in the firehouse increased. Bailey was very upset and often expressed this at the firehouse. Plaintiff began dating another gentleman and his visits to the firehouse exacerbated Bailey's frustration. The break-up also had an adverse effect on other firefighters. Plaintiff specifically confronted Johnson around February 3, 2000, and asked him to stop talking about her. (Id. at 6.) The following day Johnson told Bailey, "I want Mara out of here." (Id.) Also in February, someone drew a slash through the female character on the unisex bathroom door and scrawled "Fuck Women" beneath it. In March, Johnson added to the scheduling calendar, under Plaintiff's name, "No Help Us" and "God Help Us." (Johnson Dep. at 173; Pl.'s Ex. A at 8.) In May, someone added the words "slut," "sucks," and "sucks Bailey" after Plaintiff's name. (Pl.'s Ex. A at 8.) On May 11, 2000, Johnson told Plaintiff's Metro supervisor "not to hire any more broads." (Id. at 6.) During this period of heightened animosity Plaintiff began to keep a diary of these events, (Pl.'s Ex. H), and eventually pursued a remedy through official channels.

  D. Plaintiff's Official Complaints and the District's Response

  Plaintiff's first complained to Chief Hjelmgren on March 6, 2000. On that occasion Plaintiff was accompanied by Metro Supervisor Ken McGarry. At this initial meeting, Plaintiff informed the Chief that she was "having some problems upstairs." (Hjelmgren Dep. at 44.) The Chief responded that if it involved other people he needed names. According to the Chief, Plaintiff responded that she would deal with it herself and then left. (Id. at 45.) There is contrary evidence, however, that indicates that Plaintiff provided him with the names of Lieutenant Johnson, and Firefighters Jeffrey Frick and Kevin Kalbach. (Norman Dep. at 35.) Plaintiff told him that she was being called names and that doors had been defaced in a way that seemed directed at her. (Id.) Plaintiff indicated that she did not want to lodge a formal complaint of sexual harassment but she hoped the Chief and her Metro supervisor would be able to take care of it. (Id. at 35-36.)

  Plaintiff next complained to the Chief on May 16, 2000, when she entered a formal complaint of sexual harassment against Johnson. Chief Hjelmgren began an investigation and arranged for Plaintiff to speak with the fire department's attorneys. Plaintiff met with Joan Cherry, attorney for the fire department, on May ...


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