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GROSS v. TOWN OF CICERO

October 19, 2004.

RHONDA GROSS, Plaintiff,
v.
TOWN OF CICERO; BETTY LOREN-MALTESE, former President of the Town of Cicero, in her official and individual capacity; THOMAS ROWAN, former Chief of Police, in his official and individual capacity; CHIEF OF POLICE WAYNE JOHNSON, in his official and individual capacity; and JERALD RODISH, in his individual capacity, Defendants.



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Rhonda Gross, filed suit against Defendants, the Town of Cicero; Betty Loren-Maltese, former President of the Town of Cicero, in her official and individual capacity; Thomas Rowan, former Chief of Police, in his official and individual capacity; Chief Wayne Johnson, in his official and individual capacity; and Jerald Rodish, Commander and superior officer to Gross, in his individual capacity, under the First and Fourteenth Amendments to the Constitution of the United States, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., Title VII, 42 U.S.C. § 2000e, et seq., as amended by the Civil Rights Act of 1991, Civil Rights Act of 1866, 42 U.S.C. § 1983 and § 1988, 28 U.S.C. § 2201 et seq., and under state law for intentional infliction of emotional distress. Count I alleges a Title VII violation of sexual harassment and discrimination against Cicero. Count II alleges a § 1983 violation of Equal Protection against Cicero, Loren-Maltese, Rowan, Johnson, and Rodish. Count III alleges a Title VII violation of retaliation against Cicero. Count IV alleges a § 1983 violation of the First Amendment against Cicero, Loren-Maltese, Rowan, Johnson, and Rodish. Count V alleges Intentional Infliction of Emotional Distress against Rodish. Presently pending before the Court is: (1) Loren-Maltese's Motion to Dismiss Gross's Complaint and (2) Johnson and Cicero's Partial Motion to Dismiss Gross's Complaint.*fn1

BACKGROUND

  A reading of Gross's Complaint supports the following summary of the alleged conduct of the parties.

  In January of 1999, Gross was hired by Cicero as a police officer. Since 2000, Rodish, her superior officer, subjected her and other women to constant offensive, unwelcome, and physically and sexually abusive behavior. Specifically, Rodish solicited Gross for sex in exchange for assignments and additional work hours. In August of 2000, Gross was told by Rodish that she would have to "f_ck him" in order to receive hours at a high school which was a detail Gross wanted to work. Further, Rodish threatened her indirectly and directly with physical harm and actual physical violence. For example, Rodish made comments that Gross "needed to be shot"; said that he would like to use explosives to "blow up" someone, referring to Gross; and, he would stare Gross down giving her looks as though he wanted to kill her. In addition, Rodish referred to Gross as "cunts," "whores," "sluts," "beafers," "cunt rat beafers," and other demeaning terms. Rodish also stalked Gross, subjected her to surveillance, and started rumors about her and her family. Gross complained to Cicero's supervisory staff about Rodish's behavior and expressed that she was "scared for her life." In addition, Gross's father complained to Loren-Maltese on more than one occasion. Gross's father expressed to Loren-Maltese his concern for his daughter's safety as a result of Rodish's harassment and threats. No remedial action was taken by Cicero's supervisory staff or Loren-Maltese against Rodish. Furthermore, because Gross and her father complained about Rodish, they were subjected to retaliation.

  On or about June 8, 2001, Gross filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Gross alleged that she was discriminated against based on her gender and subjected to retaliation. On June 17, 2002, the EEOC made a finding that Cicero did in fact violate Title VII by subjecting Gross to discrimination and retaliation. Based on the evidence obtained in its investigation against Cicero, the EEOC established reasonable cause to believe Cicero violated Title VII by discriminating against Gross on the basis of her sex, female, in that Gross was sexually harassed and by retaliating against Gross for opposing Cicero's discriminatory actions.

  With respect to the EEOC's decision on June 17, 2002, Cicero and Gross entered into a "Conciliation Agreement" on or about September or October of 2002. The agreement consisted of the following: (1) Gross agreed not to sue Cicero with respect to any of the allegations contained in the EEOC charge unless Cicero failed to "perform the promises and representations" contained in the agreement; (2) Cicero agreed to comply with all the requirements of Title VII; (3) Cicero agreed not to discriminate or retaliate against Gross for her opposition to any practice declared unlawful under Title VII or for filing the EEOC charge or for testifying or participating in any manner in an investigation, proceeding, or hearing under Title VII; (4) Cicero had to pay two thousand dollars to Gross for compensatory damages within ten days of the executed agreement; (5) Cicero agreed to conduct training on sexual harassment for all employees within ninety days of the executed agreement; and (6) Cicero had to conspicuously post a "Notice to Employees" that it was found to have violated Title VII by subjecting an individual to harassment and retaliation. This notice had to be posted within ten days of the executed agreement and remain posted for a period of one year. The agreement also provided that "In the event the terms of this Agreement are not fulfilled, this Agreement may be specifically enforced in court and may be used as evidence in a subsequent proceeding in which either of the parties to this Agreement alleges a breach of this Agreement."

  After filing a charge of discrimination with the EEOC, Gross was still subjected to ongoing harassment and retaliation. Gross's father was told by Loren-Maltese, "I can no longer trust you or your daughter because of this EEOC thing." Gross's parents' house was vandalized. Gross's father was pulled out of his assignments with Cicero. Rodish conducted an investigation concerning Gross's mother and began spreading rumors about her. In addition, Gross was subjected to unwarranted and disproportionate disciplinary action. Gross was also subjected to unfounded and unauthorized Internal Affairs complaints and investigations. Besides being denied special assignments and other employment opportunities, Gross was labeled by other officers as a "cunt rat beafer," a label given to women who complained about sexual harassment or discrimination. Another superior officer hung a rubber rat from the rear view mirror of his police car to symbolize what happened to officers who complained about sexual harassment or discrimination.

  After filing a complaint with the EEOC, Gross was denied backup assistance by other officers. On June 30, 2002, Gross was dispatched based on a complaint of violence. When other officers responded that they were "en route" to the call, Rowan directed the other officers not to back up Gross. In September of 2002, another commander in the police department said to Gross, "Cunt around, cunt around, get your cunt pager out."

  Gross notified the EEOC, on November 19, 2002, of Cicero's violation of the provisions in the Conciliation Agreement. On March 6, 2003, Gross filed a second charge of discrimination and retaliation with the EEOC. In the second charge, Gross alleged that: (1) on October 4, 2002, Cicero removed her from performing teaching duties in its "Safety Town Program"; (2) in January of 2003, someone wrote graffiti on the bathroom stall calling her a "ho"; and, (3) in January of 2003, Rodish subjected her to intimidation on two occasions.

  On June 24, 2003, Gross filed a third charge of discrimination and retaliation. Gross complained that: (1) Cicero breached the Conciliation Agreement; (2) Rodish threatened her life on more than one occasion; (3) her family was retaliated against because she complained of Rodish's unlawful conduct; (4) she was referred to as a "cunt," "whore," "slut," "beafer," "cunt rat beafer," and other derogatory terms; (5) she was subjected to unwarranted and disproportionate disciplinary action; and, (6) she was denied special assignments, opportunities and other terms and conditions of her employment.

  Gross was also subjected to sexual harassment and a hostile work environment by other male co-workers and supervisors. This conduct included perpetuating a hostile work environment and condoning sexual harassment; making demeaning and offensive statements to and about Gross; subjecting Gross to unwarranted Internal Affairs investigations; subjecting Gross to unwarranted disciplinary action; and treating Gross differently than other similarly situated employees based on the terms and conditions of her employment. ANALYSIS

  In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any inferences reasonably drawn therefrom in the light most favorable to the plaintiff. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is not required to plead the facts or the elements of a claim, with the exception found in Federal Rule of Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002) (Swierkiewicz); Walker v. Thompson, 288 F.3d 761, 764 (7th Cir. 2002). A filing under Federal Rules of Civil Procedure need not contain all the facts that will be necessary to prevail. It should be "short and plain," and it suffices if it notifies the defendant of the principal events. See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003). Dismissal is warranted only if "it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is possible to hypothesize the facts, consistent with the complaint that would make out a claim." Graehling v. Village of Lombard, Ill, 58 F.3d 295, 297 (7th Cir. 1995). The simplified notice pleading relies upon liberal discovery and summary of motions to define disputed issues and facts and to dispose of unmeritorious claims. See Swierkiewicz, 534 U.S. at 513.

  The Defendants present several arguments why most of Plaintiff's Complaint should be dismissed. Cicero's and Loren-Maltese's Motions To Dismiss Based On ...


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