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November 1, 2004.


The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge


Delores Ammons-Lewis has sued her employer, the Metropolitan Water Reclamation of Greater Chicago ("the District"), for gender discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, denial of equal protection under 42 U.S.C. § 1983, failure to accommodate under the Americans with Disabilities Act, 42 U.S.C. § 12101, and violation of the Family and Medical Leave Act, 29 U.S.C. § 2601. The District has moved for summary judgment on all five counts of Ammons'*fn1 amended complaint.

For the reasons stated below, the Court grants summary judgment in the District's favor on Ammons' claims under the ADA and the FMLA and her claim of retaliation but denies summary judgment on Ammons' Title VII sexual harassment claim and her § 1983 claim.


  Ammons began working for the District in 1986. This lawsuit is one of several that she has pursued against her employer over the past eighteen years. The principal focus of the present lawsuit is the sexually charged workplace Ammons claims exists at the District's Calumet plant, where she has worked since July 1998. She asserts that the District condoned the presence of sexually offensive materials and the use of sexually explicit speech throughout the plant, and that it failed to respond to sexual harassment and an assault she endured at the hands of co-worker Willie Davis on December 12, 2001. After complaining about the Davis incident and about other incidences of sexual harassment in the plant, Ammons claims, her supervisors retaliated against her in various ways.

  Several months after the incident with Davis, Ammons claims to have had serious back pain resulting from the assault, and she requested disability leave. The District would not allow her to take disability leave because the incident was classified as an "accident," which allegedly rendered Ammons ineligible for disability leave. Ammons then tried to take leave under the FMLA but was again denied. She claims that the denial of leave violated her statutory rights under the FMLA.

  Ammons also asserts that the District violated her statutory rights under the Americans with Disabilities Act. Ammons is allergic to Polymer, a chemical used in the Calumet plant, and she claims this is a disability protected under the ADA. The District agreed to provide her with protective gear to wear whenever she was working with Polymer. Ammons claims that despite making this promise, the District never gave her the proper gear and thus failed to accommodate her disability.


  Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In considering a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party and draws reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

  1. Count 1: gender discrimination and hostile work environment

  In Count 1 of her amended complaint, Ammons charges the District with gender discrimination and sexual harassment in the form of a hostile work environment. Both parties appear to agree, however, that the real claim is one of hostile work environment; Ammons did not address the gender discrimination claim in her amended response to the District's amended motion for summary judgment. See Pl. Am. Resp. at 14-20.

  To sustain a hostile work environment claim based on sexual harassment, Ammons must provide evidence from which a reasonable fact finder could conclude that she was (1) subjected to unwelcome harassment (2) based on her gender (3) which unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment, and (4) there is a basis to impose liability on the District. See, e.g., Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). The offensiveness of the work environment is evaluated both from the subjective standpoint of the plaintiff and from the objective standpoint of a reasonable person in the plaintiff's position. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). In determining whether the work environment was hostile, the factors considered include the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work environment." Id. at 788 (internal citation omitted).

  Ammons bases her hostile work environment claim on many allegations of harassment, including pornography and other explicit materials that she says were common in the workplace; sexually offensive comments by supervisors and co-workers; sexual harassment and assault by a co-worker; and sexually offensive jokes and articles displayed on the "Wall of Fame" in the workplace kitchen area.*fn2 Taking these allegations as true, Ammons suffered from more than merely "isolated incidents" of sexual harassment, as the District argues. Id. at 788. The evidence of harassment provided by Ammons would permit a reasonable jury to find that she subjectively experienced her work environment as abusive and that a reasonable person in her position would have perceived the environment as abusive.

  In seeking summary judgment, the District argues that even if Ammons' work environment was hostile, it cannot be held liable because the harassment was committed by co-workers, not supervisors, and it took prompt remedial action when it received complaints of harassment by co-workers. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002). An employer is liable for the actions of co-workers only if it was negligent in discovering or remedying the harassment. Parkins, 163 F.3d at 1032. In this case, there is evidence the District was aware of the alleged harassment based on Ammons' many written and oral complaints to supervisors. See Pl. Am. Resp. at 17. At issue, therefore, is the sufficiency of the District's response to Ammons' complaints.

  Under Title VII, an employer's response to allegations of harassment is sufficient if it is "reasonably calculated to prevent further harassment." Longstreet v. Ill. Dep't of Corrections, 276 F.3d 379 (7th Cir. 2002). Ammons provides evidence that the District failed to respond to her complaints about the harassment from Davis. Pl. Am. Resp. to Def. 56.1(a)(3) Stmt. ¶ 59. She also states that the District knew of the sexually offensive materials in the workplace and did nothing about the situation for years. Ammons Decl. ¶¶ 17, 29-30, 36. The District disputes Ammons' allegations that it did not respond promptly to her complaints. It notes that in 2002, it hired an independent investigator to look into allegations of sexual harassment (she finished her report in July 2003), Def. 56.1(a)(3) Stmt. ¶ 168, and that as of 2003, Ammons' workplace has been free of offensive materials. Id. ¶ 71. A reasonable fact finder, however, could conclude that by waiting until 2003 to take remedial action, the District failed to take "prompt remedial action," as required by Title VII. Morgan, 536 U.S. at 116. Moreover, Ammons provides evidence that the investigation was incomplete, see Pl. Resp. at 13, and that the District did not adequately respond to ...

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