United States District Court, N.D. Illinois, Eastern Division
August 1, 2005.
LILLIE M. WILLIS, Plaintiff,
CITY OF CHICAGO, Defendant.
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Lillie M. Willis ("Willis") brought a two-count First
Amended Complaint against Defendant City of Chicago ("City")
alleging sexual harassment in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. and disability
discrimination in violation of Title I of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. On March
24, 2005, Willis voluntarily dismissed her disability claim.
Before the Court is the City's Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56(c) as to the
sexual harassment claim. For the following reasons, the Court
grants the City's motion.*fn1 UNDISPUTED FACTS
I. Willis' Employment with City of Chicago
On May 14, 1985, Willis began working for the Chicago
Department of Transportation ("CDOT") as a bridge operator. (R.
39-1, Defendant's Motion for Summary Judgment and Rule 56.1
Statement of Facts, ¶¶ 8, 9.) Willis' immediate supervisor,
Darryl Rouse, has been the Superintendent of Operations for
Bridges with CDOT since 1994. (Id. ¶¶ 10, 11.) Willis has also
had three rotating supervisors, including Jim Frobes, Lawson
Brown, and Ray Damarjian. (Id. ¶ 12.) These supervisors' duties
include assisting on boat runs, picking up time sheets and daily
reports, assisting in checking bridge houses, and reporting
problems to Superintendent Rouse. (Id. ¶ 13.) From 1993 until
2003, Stan Kaderbeck was Chief Engineer/Deputy Commissioner of
Bridges and Transit for CDOT and served as Superintendent Rouse's
supervisor. (Id. ¶ 14.)
II. The 92nd Street Bridge Tower (West)
On April 4, 1997, Willis found copies of Hustler magazine in the bathroom
shared by men and women bridge operators at the west bridge tower located at
3300 East 92nd Street. (Id. ¶¶ 16, 17.) Willis did not know who left the
magazines in the bathroom and complained about the magazines to
Superintendent Rouse on or about April 8 or 9, 1997. (Id. ¶¶ 18, 19.) Rouse
had the offensive magazines removed within two days of Willis' complaint.
(Id. ¶ 20.)
On April 11, 1997, Willis filed a written complaint concerning the
magazines with the City of Chicago Sexual Harassment Office. (Id. ¶ 21.)
Thereafter, the Sexual Harassment Office conducted an investigation into
Willis' complaint that included witness interviews and an on-site
investigation. (Id. ¶ 22.) As a result of its investigation, the Sexual
Harassment Office sustained Willis' complaint. (Id. ¶ 23.)
Superintendent Rouse then issued a memorandum on September 22,
1997, stating that sexually suggestive materials were prohibited
in the workplace, and ordered any such materials discarded.
(Id. ¶ 24.) Rouse also ordered that the memorandum be
conspicuously posted at all bridge control towers and checked to
make sure that the memorandum was posted as ordered. (Id. ¶¶
25, 26.) After Rouse had the offensive magazines removed in April
of 1997, Willis did not encountered any more offensive magazines
at the west bridge tower at 3200 East 92nd Street. (Id. ¶ 27.)
III. Dearborn Street Bridge Tower
In 1998 or 1999, while working at the Dearborn Street bridge
tower, Willis found a page torn from a men's magazine depicting a
nude female with Willis' name written on it. (Id. ¶¶ 28, 31.)
Willis reported the incident to Superintendent Rouse who issued a
memorandum to other employees concerning the incident. (Id. ¶¶
29, 30.) Rouse also sent Willis to talk to Andra Gomberg and her
staff at the City of Chicago Sexual Harassment Office, where they
informed Willis that they would investigate the incident. (Id.
¶ 30.) Willis does not know who left the magazine page at the
Dearborn Street bridge tower. (Id. ¶ 31.)
IV. East Grand Avenue Trailer
In 1998 or 1999, at the East Grand Avenue trailer, Willis found
some Hustler magazines. (Id. ¶ 33.) She also noted that someone
had posted three or four photographs of nude people torn from the
magazines. (Id.) Willis reported the magazines and pictures to
Superintendent Rouse. (Id. ¶ 35.) Although Willis cannot say
that anyone intentionally left the magazines for her, she
believes that the tradesmen who were assigned to a construction
project at East Grand Avenue left the pictures. (Id. ¶¶ 36, 37, 38.) In response to Willis'
complaint, Rouse issued another memorandum. (Id. ¶ 40.) At her
deposition, Willis testified that Rouse investigated her
complaint to the fullest extent possible. (Id. ¶ 41.)
V. Kinzie Street Bridge Tower
When Willis arrived at the Kinzie Street bridge tower on or
around May 28, 2003, she found the door to the bridge tower ajar.
(Id. ¶¶ 42, 43.) She then found a pair of women's underwear by
the bridge tower door. (Id. ¶¶ 42, 44.) Willis notified
Superintendent Rouse about the underwear. (Id. ¶ 47.) In
addition, Willis notified Gomberg at the Sexual Harassment
Office. (Id. ¶ 49.) Willis did not know who left the underwear
at the Kinzie Street bridge tower. (Id. ¶ 50.) Meanwhile,
rotating supervisor Jim Frobes investigated Willis' complaint.
(Id. ¶ 48.)
Thereafter, Donald O'Malley, Employee Relations Supervisor for
CDOT, issued a memorandum reminding bridge operators and trades
employees of the City's policy prohibiting sexual harassment, and
advising them that the display of inappropriate articles of
clothing at bridge towers was prohibited. (Id. ¶ 52.) Since May
2003, Willis has not found additional materials, such as
offensive magazines or articles of clothing, at any of the bridge
locations. (Id. ¶ 53.)
VI. Other Incidences
A. Clogged Toilets
On more than one occasion, the bathroom toilets at the shared
bathrooms in the Kinzie and Franklin Street bridge towers were
clogged. (Id. ¶¶ 55, 57.) Whenever Willis encountered a clogged
toilet, she reported it to Superintendent Rouse, who would then
call to have it repaired. (Id. ¶¶ 58, 59.) Further, the City had new toilets installed at
the Kinzie and Franklin Street bridge towers. (Id. ¶ 61.)
Willis believes, but does not have evidence to prove, that the
clogged toilets constituted harassment directed at all bridge
operators by the machinists or other tradesmen. (Id. ¶ 62.)
Willis does not know who clogged the toilets or if the toilets
were intentionally clogged. (Id. ¶ 56.)
B. Dead Fish
In the summer of 2004, Willis found a dead fish on the garbage
can near the Kinzie Street bridge tower and believes that the
fish was left for her. (Id. ¶¶ 64, 65.) Willis called
Superintendent Rouse about the dead fish. (Id., Ex. E., Rouse
Dep. at 62.) At her deposition, Willis testified that the
incident with the dead fish never interfered with her ability to
perform her job duties. (Id. ¶ 66.)
Willis also reported broken telephones to Superintendent Rouse
after which Rouse rectified the problem. (Id. ¶¶ 76, 77.)
Willis does not know if the telephones were intentionally broken
nor does she know why they malfunctioned. (Id. ¶ 78.) In her
deposition, Willis admitted that the problems with the telephones
were not discriminatory. (Id. ¶ 79.)
D. Co-workers' Conduct
In the late 1990s at the Randolph Street bridge tower, while
Willis' co-worker, Ed Buckner, was eating breakfast, Willis said
to him, "Why would you eat something like that, because it's a
lot of cholesterol, cheese, eggs, and things like that." (Id. ¶
82.) Buckner replied to Willis to "mind your own business,
bitch." (Id. ¶ 83.) After Willis reported this incident,
Superintendent Rouse posted memoranda reminding employees to
refrain from using derogatory remarks. (Id. ¶¶ 84, 85.)
In or around August 2002, Willis overheard a conversation
between her co-workers, John Fairman and Otis Howard, in which
Fairman referred to Willis' "fat ass." (Id. ¶ 67.) Willis
complained to Superintendent Rouse about the remark and Rouse
sent Fairman a written reprimand. (Id. ¶¶ 68, 69.) In or around
June 2004, while at Loomis Street bridge tower, Fairman asked
Willis not to sit at the bridge controls because he wanted
privacy to speak on the telephone and told her to go downstairs.
(Id. ¶ 70.) Rouse responded to this complaint by holding a
face-to-face meeting with Fairman at which Willis was present.
(Id. ¶ 71.) Rouse informed Fairman that he could not tell
anyone what to do on the job site. (Id.) Willis testified that
by speaking to Fairman, Rouse helped to improve Fairman's
behavior. (Id. ¶ 73.) Further, since Rouse spoke to Fairman, he
has not made any similar comments to Willis. (Id. ¶ 74.)
In the spring of 2004, another co-worker, Dennis White, told
Willis that she should "carry her ass home if she can't perform
the job." (Id. ¶ 80). From Willis' deposition testimony, it is
unclear in what context White made this statement. (Id., Ex. D,
Willis Dep. at 185-87.) Willis also testified that her co-worker,
Kevin Servicen, played his radio too loudly and listened to
"Manchow" on the radio. (Id. ¶ 81, Ex. D, Willis Dep. at
188-89.) After Willis complained to Superintendent Rouse about
Servicen, Rouse told Servicen that he could not listen to
"Manchow" on City property. (Id.)
VII. EEOC Charge
Willis filed a Charge of Discrimination with the United States
Equal Employment Opportunity Commission ("EEOC") on August 4,
2003. (Id. ¶ 6.) In her EEOC Charge, Willis alleged that while
she has worked for the City, she has been sexually harassed
despite her complaints to Human Resources. (Id., Ex. C.)
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552,
91 L.Ed.2d 265 (1986). A genuine issue of material fact exists only if "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, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In
determining whether a genuine issue of material fact exists, the
Court construes all facts and reasonable inferences in a light
most favorable to the non-moving party. Id. at 255. Even where
all of the material facts are undisputed, as in this case, the
Court must still determine whether judgment is proper as a matter
of law. See Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th
I. Statute of Limitations
Under Title VII, a plaintiff must file an employment
discrimination charge with the EEOC within 300 days "after the
alleged unlawful employment practice occurred."
42 U.S.C. § 2000e-5(e)(1); see also National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 104-05, 122 S.Ct. 2061, 153 L.Ed.2d 106
(2002). In general, federal courts only consider evidence from
this 300-day period when making Title VII determinations,
however, because the statute of limitations is not
jurisdictional, it is subject to equitable considerations. See
Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 860
(7th Cir. 2005); Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir. 2004).
The City contends that because Willis did not file her EEOC
charge until August 4, 2003, any actionable conduct is limited to
the incidences occurring after October 8, 2002, which was 300
calendar days prior to her EEOC charge. See Dandy,
388 F.3d at 270. The City also contends that Willis cannot establish a
continuing violation because the alleged discriminatory acts
occurred in two, unrelated "clusters."
A plaintiff may establish a continuing violation if separate
acts of discrimination are part of an ongoing pattern and at
least one of the acts occurred within the relevant limitations
period. See Morgan, 536 U.S. at 120; Dandy, 388 F.3d at 270.
When determining whether a continuing violation claim is
actionable, the Court examines (1) whether the acts involve the
same subject matter, (2) the frequency with which the conduct
occurred, and (3) the degree of permanence of the alleged
discriminatory conduct that should trigger an employee's
awareness to assert her rights. See Tinner v. United Ins. Co. of
Am., 308 F.3d 697, 708 (7th Cir. 2002).
The first occurrence of alleged sexual harassment occurred in
1997 when Willis found copies of Hustler magazine at the 92nd
Street bridge tower. Next, Willis found some Hustler magazines
and photographs of nude people posted on the wall at the East
Grand Avenue trailer in 1998 or 1999 and also found a nude
picture from a men's magazine at the Dearborn Street bridge tower
during the same time period. In the late 1990s, one of Willis'
co-workers told her to "mind your own business, bitch" after
Willis made a remark about his breakfast.
The next alleged incident of sexual harassment happened over
two years later in 2002 when Willis' co-worker referred to her
"fat ass." After that, Willis found women's underwear and a dead
fish at the Kinzie Street bridge tower, Willis' co-worker asked
her to leave the Loomis Street bridge tower, another co-worker told her to "carry
her ass home if she can't perform the job," and a co-worker
listened to "Manchow" too loudly on the radio.*fn2
Based on these two separate "clusters" of incidences, the Court
would be hard-pressed to conclude that Willis has established a
continuing violation. As discussed in further detail below, the
incidences that occurred from 1997 until 2004 were infrequent and
isolated. See Tinner, 308 F.3d at 708. Moreover, the two sets
of incidences are not related. See id. For example, there were
no occurrences after 1998 concerning men's or Hustler magazines.
Also, the comment made by her co-worker at the Randolph Street
bridge in the late 1990s, concerning Willis minding her own
business, was separate in time and place from other co-workers'
comments. Finally, the more than two-year separation between the
late 1990s incidences and the occurrences starting in 2002 weighs
heavily against finding a continuing violation. See Lucas v.
Chicago Transit Auth., 367 F.3d 714, 727 (7th Cir. 2004)
(citing Selan v. Kiley, 969 F.2d 560, 567 (7th Cir. 1992)).
As such, the Court will not consider the incidences occurring
before 2002 in determining Willis' hostile work environment claim
because Willis has failed to establish that these actions
constitute a continuing violation. See Beamon, 411 F.3d at 860
(equitable tolling in Title VII actions is applied sparingly).
II. Hostile Work Environment Claim
The Court thus turns to the merits of Willis's Title VII
hostile work environment claim based on conduct occurring after
2001. Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1). Accordingly, Title
VII prohibits an employer from "requiring people to work in a
discriminatorily hostile or abusive environment." Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
126 L.Ed.2d 295 (1993).
To prevail on her hostile work environment claim, Willis must
demonstrate that (1) she was subjected to unwelcome sexual
harassment, (2) the harassment was based on her sex, (3) the
sexual harassment was severe and pervasive enough to unreasonably
interfere with her work performance by creating an intimidating,
hostile, or offensive work environment, and (4) there is a basis
for the City's liability. Moser v. Indiana Dept. of Corr.,
406 F.3d 895, 902 (7th Cir. 2005); Kriescher v. Fox Hills Golf
Resort & Conference Ctr., 384 F.3d 912, 915 (7th Cir. 2004).
The Court turns to the third and fourth prongs of this test
because they are dispositive.
A. Hostile Work Environment
To qualify as hostile, a work environment must be objectively
and subjectively offensive. Racicot v. Wal-Mart Stores, Inc.,
___ F.3d ___, ___, 2005 WL 1560332, at *2 (7th Cir. July 5,
2005). In other words, the alleged conduct must be sufficiently
severe that the plaintiff subjectively thought it hostile and
that a reasonable person would find it hostile, as well.
Kriescher, 384 F.3d at 915. When evaluating whether a work
environment is hostile, courts examine all of the surrounding
circumstances, such as the frequency and severity of the
discriminatory conduct, whether the conduct was physically
threatening or humiliating or just offensive, and whether the
conduct interfered with the employee's work performance.
Racicot, 2005 WL 1560332, at *2; Moser, 406 F.3d at 902.
Viewing the facts in a light most favorable to Willis, the
record does not support the conclusion that Willis' work
environment was so severe and pervasive as to constitute a
hostile work environment. See Kriescher, 384 F.3d at 915. The
handful of occurrences that Willis contends constitute sexual
harassment occurred over a two year period and include two
co-workers' isolated comments, finding women's underwear and a
dead fish, and malfunctioning telephones and clogged
First, not only were her co-workers' comments infrequent and
isolated, Willis has not established that the comments "fat ass"
and "carry her ass home if she can't perform the job," plus her
co-worker's request that she go downstairs, are gender-related,
and thus these comments cannot support Willis' hostile work
environment claim based on sex. See Berry v. Delta Airlines,
260 F.3d 803, 809-10 (7th Cir. 2001) (although gender-based
conduct need not be overtly sexual, conduct must be motivated by
gender). Even if the comments were gender-related, they do not
rise to the level of actionable conduct. See, e.g., Patt v.
Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir. 2002)
(plaintiff's complaints of eight gender-related comments,
including "the only valuable thing to a woman is that she has
breasts and a vagina," insufficient to demonstrate hostile work
environment); Savino v. C.P. Hall Co., 199 F.3d 925, 933
(7th Cir. 1999) (sporadic use of abusive language and
gender-related jokes did not amount to actionable harassment).
As to the clogged toilets and malfunctioning telephones, Willis
fails to specify when these occurrences happened. Therefore,
these incidences are insufficient to defeat summary judgment.
See Lucas, 367 F.3d at 725-26 (undated, unspecific assertions
do not demonstrate hostile work environment). Furthermore, Willis
admits that the malfunctioning telephones were not discriminatory
and does not know who clogged the toilets or if the toilets were
clogged intentionally. Instead, Willis believes that the clogged
toilets constituted harassment directed at all the bridge
operators. Under such circumstances, courts treat "second-hand"
harassment as less objectionable than harassment directed a
plaintiff. See Moser, 406 F.3d at 903. In any event, without
more, Willis has not established that the clogged toilets and
malfunctioning telephones constituted gender-based harassment
directed at her.
Finally, Willis does not give the Court enough information
about finding the dead fish and women's underwear to determine if
they contributed to a hostile or offensive work environment that
unreasonably interfered with her work performance. See Moser,
406 F.3d at 902. For instance, Willis does not know who left the
fish or the underwear. Even if the dead fish had her name next to
it as Willis claims, Willis admitted at her deposition that the
incident with the dead fish never interfered with her ability to
perform her job duties. In fact, Willis testified that none of
the alleged incidences of sexual harassment interfered with her
work performance. (See Def.'s Stmt. Facts, ¶ 15.)
As the Supreme Court has noted, Title VII is not a code of
general civility for the workplace, as such, offhanded and
isolated comments do not amount to actionable conduct. See
Faragher v. City of Boca Raton, 524 U.S. 775, 788,
118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); see also Berry, 260 F.3d at 808 (Title VII not a general civility
code designed to purge workplace of boorish conduct). Here, the
facts in the record do not support the conclusion that Willis'
work environment was sexually hostile. Instead, the facts reveal
"a limited number of incidents that are more reflective of run of
the mill uncouth behavior than an atmosphere permeated with
discriminatory ridicule and insult." Racicot, 2005 WL 1560332,
at *2. Accordingly, Willis has failed to establish that the
alleged sexual harassment was so severe and pervasive as to
unreasonably interfere with her work performance by creating an
intimidating, hostile, or offensive work environment. See
Kriescher, 384 F.3d at 915 (plaintiff failed to present evidence
that reasonable person would find workplace hostile to female
B. Employer Liability
The standard for employer liability turns on whether the
alleged harasser was the plaintiff's supervisor or co-worker.
See Faragher v. City of Boca Raton, 524 U.S. 775, 787,
118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Harassment by a supervisor
triggers strict liability subject to any affirmative defenses.
McPherson v. City of Waukegan, 379 F.3d 430, 438 (7th Cir.
2004). Harassment by a co-worker, on the other hand, leads to
employer liability only where the plaintiff proves that the
employer was negligent in discovering or remedying the
harassment. Cerros v. Steel Tech., Inc., 398 F.3d 944, 952
(7th Cir. 2005). Because there is no evidence in the record
that Willis' supervisors sexually harassed her, the Court
examines Willis' allegations of co-worker harassment to determine
the City's liability.
Willis reported all but one of the incidences to Superintendent
Rouse. Therefore, the Court need not determine whether the City
was negligent in discovering the alleged harassment as to these
reported claims. See id. The Court thus examines whether the
City's responses to the allegations of harassment were "reasonably calculated to prevent
further harassment under the particular facts and circumstances
of the case at the time the allegations are made." Longstreet v.
Illinois Dep't of Corr., 276 F.3d 379, 382 (7th Cir. 2002)
(citation omitted); see also Berry, 260 F.3d at 811 (if
employer takes reasonable steps to rectify the harassment, it has
discharged its legal duty).
Here, the City took reasonable steps to remedy the alleged
harassment. For example, after Willis reported finding the
women's underwear at the Kinzie Street bridge tower, supervisor
Jim Frobes investigated her complaint. Thereafter, Donald
O'Malley, CDOT's Employee Relations Supervisor, issued a
memorandum reminding bridge operators and trades employees of the
City's policy prohibiting sexual harassment and advising them
that the display of inappropriate articles of clothing at bridge
towers was prohibited. Since May 2003, Willis has not found
additional materials, such as offensive magazines or articles of
clothing, at any of the bridge locations.
After Willis complained about the clogged toilets and broken
telephones, Superintendent Rouse had the toilets and phones
repaired. In fact, new toilets were installed at the Kinzie and
Franklin Street bridge towers. In addition, after Willis
complained to Superintendent Rouse about her co-worker playing
the radio too loudly and listening to "Manchow" on the radio,
Rouse told the co-worker that he could not listen to "Manchow" on
Likewise, after Willis' co-worker, John Fairman, referred to
her "fact ass," Rouse sent a written reprimand to Fairman. After
Fairman told Willis to go downstairs, Rouse held a face-to-face
meeting with Fairman with Willis present. At that meeting, Rouse
informed Fairman that he could not tell anyone what to do on the
job site. In addition, Willis testified that by speaking to Fairman, Rouse helped improve Fairman's behavior. In fact,
since Rouse spoke to Fairman, he has not made any similar
comments to Willis.
Next, there is nothing in the record indicating that Willis
reported her co-worker's comment that she should "carry her ass
home if she can't perform the job" to her supervisors or to the
City's Sexual Harassment Office. Indeed, Willis has not provide
enough information regarding this comment to analyze whether the
City was negligent in discovering it. See Cerros,
398 F.3d at 952. More importantly, because Willis fails to give any details
as to the context in which this statement was made, this comment
alone is simply not gender-related. See McKenzie v. Milwaukee
County, 381 F.3d 619, 625 (7th Cir. 2004) (citation omitted)
(mere use of coarse language does not constitute harassment).
This comment simply does not support Willis' allegations of
sexual harassment in the first instance. See Berry,
260 F.3d at 808 (inappropriate conduct inflicted regardless of sex is outside
gambit of Title VII).
Finally, although Superintendent Rouse did not respond to
Willis' dead fish complaint, Rouse's failure to respond to this
complaint does not support employer liability. More specifically,
when Willis reported this incident to Rouse, she did not provide
"enough information to make a reasonable employer think there was
some probability that she was being sexually [or racially]
harassed." Cooper-Schut v. Visteon Auto. Sys. 361 F.3d 421, 426
(7th Cir. 2004) (citation omitted). As such, the City cannot
be held liable for failing to respond to this incident. See id.
Viewing the evidence in a light most favorable to Willis, the
City was not negligent in responding to Willis' complaints and it
took reasonable steps to remedy her various complaints.
Accordingly, the City is not liable for any co-worker conduct.
See Berry, 260 F.3d at 811. CONCLUSION
For these reasons, the Court grants Defendant's Motion for