The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant City of Chicago's
("City") motion for summary judgment, Defendant John Tominello's
("Tominello") motion for summary judgment, and on Defendants Mike
DiTusa's ("DiTusa") and Joseph Senese's ("Senese") motion for
summary judgment. For the reasons stated below, we grant
Defendants' motions in their entirety.
In July of 1993, Plaintiff Donna Valentine ("Valentine") began
working for the City Department of Transportation. In 1998,
Valentine worked at the Bosworth yard location as a motor truck driver and a sweeper. As a motor
truck driver Valentine was required to maintain the truck and
transport equipment and personnel between locations. Defendant
Tominello was another motor truck driver that worked at the
Bosworth yard location with Valentine. Defendant DiTusa also
worked at the Bosworth yard as the Lot Supervisor. From June of
2002 to May of 2003, Defendant Senese was the Acting General
Foreman and was responsible for the supervision of all of the
City yards. Senese supervised motor truck drivers, dispatched
trucks and performed other administrative functions in the
Valentine claims that she was sexually harassed by Tominello at
work. Specifically, Valentine claims that Tominello would comment
about her rear end and her breast and would make references to
the possible contact with certain body parts of Valentine.
Valentine contends that Tominello would ask Valentine to leave
her fiancé and date him instead and asked her out on a date many
times and asked her to go out to dinner between thirty and forty
times. Valentine contends that Tominello made two or three
inappropriate comments to her two or three times a week in
between March of 2002 and September of 2002. Valentine also
claims that Tominello rubbed his crotch over his pants in front
of her just about every day between March of 2002 and September
of 2002. Valentine also contends that Tominello told her that he
was going to Chinatown to get a massage and to get his "pipes
cleaned" while gesturing at his crotch area. Valentine claims
that Tominello stroked her arm or shoulder approximately six
times. According to Valentine, the comments and actions by Tominello were unwanted and she claims
that she complained to DiTusa about Tominello's conduct
approximately ten times.
According to Valentine, on September 25, 2002, at 6:00 a.m. she
went into DiTusa's office when DiTusa, Tominello, and other motor
truck drivers were present. Valentine claims that in front of the
others, Tominello harassed her orally and then took a powdered
cookie and made a motion with it as if to masturbate with it and
got powdered sugar on Valentine's crotch area and right thigh.
Valentine claims that she got angry and engaged in an oral
confrontation with Tominello. Valentine claims that later that
day she found spit which appeared to contain pieces of a cookie
on her driver's side door window. Valentine claims that she
complained to DiTusa and that when she next returned to her car
she found a four or five inch plastic penis under her windshield
wiper. Later on September 25, 2002, Valentine complained to
Senese. On September 26, 2002, Valentine told DiTusa that she had
talked to Senese about the incident and Valentine claims that
DiTusa told her "Now you have done it, now you're going to bring
heat on all of us." The day after Valentine complained to Senese,
Tominello was transferred to a different yard.
Valentine went to the Sexual Harassment Office on September 27,
2002, to file a complaint. On October 24, 2002, Valentine noticed
that Tominello was at the Bosworth Yard and so she locked herself
in her car and called Senese who told her that Tominello's
presence at the Bosworth Yard was due to an oversight. Valentine
contends that on October 25, 2002, while she was in DiTusa's
office she saw DiTusa writing down the names of individuals listed as witnesses in her
sexual harassment complaint. Valentine claims that DiTusa swore
and threw a chair against the wall. In November of 2002,
Valentine was transferred to the O'Hare Yard. In January of 2003,
Valentine requested to be transferred to the Department of Water
Management, and in April of 2003 she was transferred.
Valentine claims that Defendants retaliated against her for
filing the sexual harassment complaint by giving her an
unwarranted one-day suspension on December 11, 2002 for
dereliction of duty. She served a one-day suspension which was
later rescinded. Valentine also claims that she was retaliated
against when her request regarding vacation carryover did not get
to payroll. She also claims that when she called in sick on
December 16, 2002, that it was recorded as "absent no pay" rather
than as "sick no pay." Valentine claims that she was retaliated
against on February 26, 2003, when she was issued a written
reprimand for allegedly threatening Tominello. She also claims
that Defendants retaliated against her by continually losing her
paperwork. Finally, Valentine claims that she was retaliated
against when she received a harassing phone call on her cell
phone, when she was ignored by co-workers, and when she was
called a rat by Anthony Moreno.
On March 19, 2003, Valentine filed a charge with the Equal
Employment Opportunity Commission alleging sexual discrimination.
Valentine then filed the instant action and included in her first
amended complaint an equal protection claim against the City,
Tominello, DiTusa, and Senese based upon 42 U.S.C. § 1983 ("Section 1983") (Count I), a Section 1983 retaliation claim
against the City, Tominello, DiTusa, and Senese (Count II), a
sexual harassment claim against the City based upon violations of
Title VII of the Civil Rights Act of 1964 ("Title VII),
42 U.S.C. § 2000e et seq., (Count III), an intentional infliction of
emotional distress claim ("IIED") against Tominello and DiTusa
(Count IV), a willful and wanton assault claim against Tominello
and DiTusa (Count V), a battery claim against Tominello (Count
VI), and a claim alleging a violation of the Illinois Hate Crimes
Act, 720 ILCS 5/12-7.1, against Tominello (Count VII).
Summary judgment is appropriate when the record, viewed in the
light most favorable to the nonmoving party, reveals that there
is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). In seeking a grant of summary judgment the moving party
must identify "those portions of `the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.56(c)).
This initial burden may be satisfied by presenting specific
evidence on a particular issue or by pointing out "an absence of
evidence to support the non-moving party's case." Id. at 325.
Once the movant has met this burden, the non-moving party cannot
simply rest on the allegations in the pleadings, but, "by affidavits or as
otherwise provided for in [Rule 56], must set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P.56(e). A "genuine issue" in the context of a motion
for summary judgment is not simply a "metaphysical doubt as to
the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp, 475 U.S. 574, 586 (1986). Rather, a genuine issue of
material fact exists when "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v.
Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The
court must consider the record as a whole, in a light most
favorable to the non-moving party, and draw all reasonable
inferences that favor the non-moving party. Anderson,
477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th
I. Section 1983 Municipal Liability Claim
The City moves for summary judgment on the Section 1983
municipal liability claims. The doctrine of respondeat superior
cannot be utilized to hold local governmental units liable for
Section 1983 violations. Monell v. Department of Social
Services, 436 U.S. 658, 691 (1978). A municipal governmental
unit cannot be held liable under Section 1983 "unless the
deprivation of constitutional rights is caused by a municipal
policy or custom." Kujawski v. Board of Comm'rs. Of Bartholomew County, Indiana, 183 F.3d 734, 737 (7th Cir.
1999). A local governmental unit's unconstitutional policy,
practice, or custom can be shown by: "(1) an express policy that
causes a constitutional deprivation when enforced; (2) a
widespread practice, that, although unauthorized, is so permanent
and well-settled that it constitutes a "custom or usage" with the
force of law; or (3) an allegation that a person with final
policymaking authority caused the injury." Chortek v. City of
Milwaukee, 356 F.3d 740, 748 (7th Cir. 2004). Valentine has
not shown that any express policy or practice was behind the
alleged harassment or alleged failure to prevent the harassment.
Neither has Valentine shown that any City employee with
policymaking authority was involved in the alleged misconduct.
The evidence presented is limited to events surrounding Valentine
and a limited reference to ...