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VALENTINE v. CITY OF CHICAGO

January 11, 2005.

DONNA VALENTINE, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation JOHN TOMINELLO, MIKE DITUSA, and JOSEPH SENESE, Defendants.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

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.

BACKGROUND

  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 office.

  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).

  LEGAL STANDARD

  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 Cir. 2000).

  DISCUSSION

  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 ...


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