The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
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
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 ...