United States District Court, N.D. Illinois, Eastern Division
October 19, 2004.
RHONDA GROSS, Plaintiff,
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
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
Plaintiff's Insufficient Municipality Claim Under § 1983
Cicero and Loren-Maltese argue that the Plaintiff's allegations
of an unconstitutional municipal policy or custom are legally
insufficient to state a § 1983 action. Therefore, Counts II and
IV should be dismissed.
There are three ways in which a municipality can be held liable
for a violation of an individual's constitutional rights:
(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice
that, although not authorized by written law or
express municipal policy, is so permanent and well
settled as to constitute a custom or usage with the
force of law; or (3) an allegation that the
constitutional injury was caused by a person with
final policymaking authority.
Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728
(7th Cir. 1994).
The Plaintiff asserts liability against Cicero based on a
widespread practice and on the fact that her constitutional
injuries were caused by person(s) with final policymaking
authority or who were delegated with final policymaking
authority. Under the widespread practice theory, the Plaintiff
alleges that Cicero had a widespread practice of allowing and
condoning sexual harassment and retaliation. Cicero argues that
the Plaintiff's theory only involves her personal situation and
experiences. An individual's own personal experiences are not
enough to sufficiently allege an unconstitutional practice.
Wyrick v. City of Chicago, No. 99 C 4777, 2001 WL 293082, *2
(N.D. Ill. March 26, 2001) (accentuating "single incidents of
unconstitutional activity are not enough to trigger liability,
nor are a plaintiff's own isolated experiences."). Cicero argues
that the Plaintiff's vague references to other women in her
complaint are not sufficient to establish municipal liability under the widespread practice theory. Figueroa v. City
of Chicago, No. 97 C 8861, 1999 WL 163022, *6 (N.D. Ill. March
12, 1999) (emphasizing that allegations which make vague
references to other persons subjected to similar harassment does
not establish a pattern which would show policy or custom).
Because the Plaintiff did not include references to other women
in her EEOC charges, Cicero argues that the Plaintiff is
precluded from including the references in her complaint. See
Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497,
500 (7th Cir. 1994) (emphasizing that a plaintiff cannot bring
claims that were not included in their underlying charge of
The Plaintiff must ultimately prove that Cicero had a
widespread practice of sexual harassment and discrimination. To
do so, the Plaintiff can make references to harassment and
discrimination directed and experienced by other women. See
Resnick v. American Dental Ass'n, 90 F.R.D. 530, 541 (N.D.Ill.
1981) (past discrimination company wide "is highly relevant to
the issue of whether [defendant] engaged in such discrimination
during [plaintiff's] employment"). The Plaintiff's references to
other women in her complaint are not utilized for the purpose of
expanding her claims against Cicero under Title VII.
The Plaintiff alleges that there has been media attention
surrounding Cicero's alleged practice of First Amendment
violations of its employees and that Cicero's supervisors knew or
should have known of the harassment; acted pursuant to a custom
of discrimination, harassment, and retaliation; Cicero's
employees perpetuated a hostile work environment; Cicero itself
failed to respond to complaints; and Cicero had a practice of
allowing Rodish to remain a police officer regardless of his
alleged sexual misconduct and abuse of women. In drawing all
reasonable inferences in favor of the Plaintiff, the Plaintiff
has sufficiently alleged a widespread custom and practice of
Equal Protection and First Amendment violations. Based upon the Plaintiff's
allegations, the Motion to Dismiss Counts II and IV against
Cicero is denied.
Plaintiff's Claims Against Loren-Maltese Are Not Barred By The
Statute Of Limitations
Loren-Maltese argues that Counts II and IV should also be
dismissed against her because the Plaintiff's claims are barred
by the statute of limitations. In addition, Loren-Maltese
contends that she cannot be liable for any conduct occurring
after she resigned as Town President.
The statute of limitations for a § 1983 claim is two years.
Hildebrandt v. Illinois Dept. of Natural Resources,
347 F.3d 1014, (7th Cir. 2003) (Hildebrandt); Licari v. City of
Chicago, 298 F.3d 664 (7th Cir. 2002). According to
Loren-Maltese, the Plaintiff's claim cannot rest on any conduct
that occurred before January 22, 2002 (two years before the
complaint was filed). In addition, to bring a § 1983 claim, the
Plaintiff must plead and prove that the Defendant acted "under
color of state law." See Ross v. Town of Austin, 343 F.3d 915
(7th Cir. 2002). Loren-Maltese argues that once she resigned on
August 1, 2002, she was no longer acting "under color of state
law" and that, therefore, no § 1983 claim exists beyond her
resignation. According to Loren-Maltese, the only actionable
conduct against her had to occur between January 22, 2002 and
August 1, 2002. Because the Plaintiff does not allege any conduct
during this time period, Loren-Maltese argues that she cannot be
liable under a § 1983 claim.
A defendant can be held liable under § 1983 only if "he caused
or participated in the alleged constitutional deprivation."
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). A
supervisory official takes part in the deprivation if he "acts or
fails to act with a deliberate or reckless disregard of
plaintiff's constitutional rights, or if the conduct causing the
deprivation occurs at his direction or with knowledge or
consent." Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982).
If the supervisors know about the harassing conduct and "facilitate
it, approve it, condone it, or turn a blind eye for fear of what
they might see," they act with deliberate, reckless indifference.
Jones v. City of Chicago 856 F.2d 985, 992-93 (7th Cir. 1988).
The Plaintiff argues that she is not barred by the statute of
limitations under a hostile work environment claim.
Because . . . a claim [for hostile work environment]
is composed of a series of separate acts that
collectively constitute one `unlawful employment
practice,' it does not matter that some of the
component acts fall outside the statutory period of
time. Provided that an act contributing to the claim
occurs within the filing period, the entire time
period of the hostile work environment may be
considered for the purposes of determining liability.
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 103
(2002) (National R.R.); see also, Amtrak v. Morgan,
122 U.S. 2061, 2074 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1), as long as
"[any] act contributing to the claim occurs within the filing
period, the entire time period of hostile work environment may be
considered by a court for the purposes of determining
liability"); Hildebrandt, 347 F.3d at 1036 n. 18 (emphasizing
that although the rule concerning hostile work environment claims
under National R.R. applied to a Title VII case, courts have
applied this rule of law to § 1983 cases as well).
Viewed in the light most favorable to the Plaintiff, the
Plaintiff pled to at least one incident occurring within the
statute of limitations against Loren-Maltese. Moreover, the
Plaintiff alleges that Loren-Maltese continued to be involved in
and took part in the harassment and retaliation of the Plaintiff
either directly or indirectly after her resignation. See
National R.R., 536 U.S. 101 at 103 (emphasizing that "subsequent
events may still be part of one claim."). In addition, the
Plaintiff asserts that Loren-Maltese was made aware of the
harassment, did nothing to stop it, and was personally involved in the harassment after her resignation.
Accordingly, Plaintiff's § 1983 claims against Loren-Maltese are
not barred by the statute of limitations.
Official Capacity Claims Against Loren-Maltese And Johnson
Loren-Maltese and Johnson argue Plaintiff's "official capacity"
claims against them should be dismissed because the claims are
identical to those asserted against Cicero and are based on the
same set of allegations.
Official capacity suits are akin to bringing suits against the
entity, here, a municipality itself. "As long as the government
entity receives notice and an opportunity to respond, an official
capacity suit is, in all respects other than name, to be treated
as a suit against the entity." See Contreras v. City of
Chicago, 920 F.Supp 1370, 1376 n. 1 (N.D.Ill. 1996) (dismissing
sua sponte official capacity claims). In addition, courts have
emphasized that civil rights claims against individual defendants
in their official capacities are redundant of the claims brought
against a governmental entity and, therefore, must be dismissed.
See Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Rascon
v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986). Accordingly,
Plaintiff's official capacity claims against Loren-Maltese and
Johnson as to Counts II and IV are dismissed.
Defendants' Assertion That The Plaintiff's Speech Is Not
Loren-Maltese, Johnson, and Cicero argue that Count IV should
be dismissed against them because the Plaintiff has not alleged
any constitutional protected "free speech." Although the Seventh
Circuit recognizes that incidents relating to sexual harassment
are inherently matters of public concern, Loren-Maltese, Johnson,
and Cicero argue that the Plaintiff's claims of sexual harassment
do not go beyond her own personal issues. See Gonzalez v. City
of Chicago, 239 F.3d 939
, 941 (7th Cir. 2001) (emphasizing that
"speaking up on a topic that may be deemed one of public importance does not automatically mean that the employee's
statements address a matter of public concern").
The Seventh Circuit applies a three-step analysis when
determining whether speech constitutes a matter of public
concern. Brown v. Disciplinary Committee, 97 F.3d 969, 972 (7th
Cir. 1996) (Brown). First, the court considers whether the
speech would be protected if someone other than a public employee
had made the statement. Brown, 97 F.3d at 972. Second, the
court determines whether the speech is something more than an
employee grievance. Brown, 97 F.3d at 972. Finally, if the
court determines that the speech is not an employee grievance,
the court must then make a decision as to whether there was a
convincing reason to forbid the speech. Brown, 97 F.3d at 972.
Upon making the determination of whether speech constitutes a
mater of public concern, the court must also look to the context,
form, and content of the speech. Dishnow v. School Dist. of Rib
Lake, 77 F.3d 194, 197 (7th Cir. 1996). Speech is not prevented
from being a matter of public concern simply because there is the
mere presence of personal motive. Givhan v. Western Line Consol.
Sch. Dist., 439 U.S. 410, 413, 414 (1979); Auriemma v. Rice,
910 F.2d 1449, 1460 (7th Cir. 1990) (emphasizing that the First
Amendment prohibits retaliation against an employee where his
complaints address "a broader social cause or have a broader
impact on the community or public welfare"). The Plaintiff
alleges that her speech does address matters of public concern in
that she was denied back-up; Cicero failed to conduct training on
sexual harassment for all employees; and Cicero failed to post
notice that it had violated Title VII, all of which address
matters of public concern. Speech that is related to police
protection and public safety does touch on matters of public
concern, "even if the speaker was partly motivated by personal
concerns." Gustafson v. Jones, 290 F.3d 89, 913 (7th Cir. 2002).
Cicero also argues that the Plaintiff's allegations based on
Cicero's failure to post notice or train its employees on sexual
harassment (remedies in the Conciliation Agreement) cannot be
used to argue that it violated the First Amendment because these
allegations were not complained about in the Plaintiff's EEOC
charges. However, "[a]n employee need not file an EEOC charge
alleging a breach of the [Conciliation] Agreement to invoke
jurisdiction of a federal court over an action arising from the
breach of [the] agreement." Brewer v. Muscle Shoals Bd. of
Educ., 790 F.2d 1515, 1519 (11th Cir. 1986). Such actions can be
brought directly under Title VII in which the federal courts have
subject matter jurisdiction. EEOC v. Liberty Trucking Co.,
695 F.2d 1038, 1044 (7th Cir. 1982). Accordingly, the Motion to
Dismiss Count IV on these grounds is denied.
Plaintiff's Claims Against Loren-Maltese
Loren-Maltese asserts that the EEOC Conciliation Agreement bars
all of the Plaintiff's claims against her. According to
Loren-Maltese, because the allegations in the Plaintiff's
original EEOC charge form the Plaintiff's § 1983 claims, the
Plaintiff's Complaint must be dismissed.
The EEOC Conciliation Agreement has no application to the
Plaintiff's claim against Loren-Maltese in her individual
capacity. An agreement that releases any potential claims against
a party must "specifically identify the other tortfeasors in
order to discharge their liability." Alsup v. Firestone Tire &
Rubber Co., 461 N.E.2d 361, 362 (Ill. 1984). Nothing in the
language of the Conciliation Agreement implies that the Plaintiff
waived any right to bring a claim against Loren-Maltese.
Moreover, Loren-Maltese was not a party to the agreement nor
could she be because under Title VII, there is no individual
liability. Williams v. Banning, 72 F.3d 552, 555 (7th Cir.
1995). The only parties to the agreement were the Plaintiff and
Cicero. The Plaintiff waived claims against Cicero with respect to the allegations occurring on June 8, 2001,
but did not waive any other claims to any other individuals.
Furthermore, the Conciliation Agreement did not prevent the
Plaintiff from filing claims based on subsequent acts of
discrimination and retaliation. Accordingly, the EEOC
Conciliation Agreement does not bar the Plaintiff's claims
For the foregoing reasons, Loren-Maltese's and Johnson and
Cicero's Motions to Dismiss are denied except that Plaintiff's
official capacity claims against Loren-Maltese and Johnson as to
Counts II and IV are dismissed.