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Massaro v. Illinois Dep't of Corrections

April 20, 2006


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


Before the Court is a Motion to Dismiss by Defendants Jeff McChurch ("McChurch") and Jeff Papish ("Papish"). Defendants ask this Court to dismiss Counts III and IV of Plaintiff's complaint. For the reasons that follow, Defendants' Motion to Dismiss Counts III and IV [#30] is DENIED.


The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as the claims asserted arise pursuant to Title VII, 42 U.S.C. § 2000e, and 42 U.S.C. § 1983. Moreover, the Court has supplemental jurisdiction to hear Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.


Plaintiff Anthony Massaro ("Massaro") is an employee of the Illinois Department of Corrections and has worked for the Department of Corrections at the East Moline Correctional Center ("EMCC") since September 15, 2003. Defendants McChurch and Papish were supervisory employees who had supervisory authority over Massaro. Additionally, Papish was the vice president of the local union representing Massaro.

The following is a brief summary of the allegations in Massaro's complaint. Many of the facts of Massaro's claims relate to Defendant Johnson and are not directly related to Defendant McChurch or Papish. Accordingly, the Court will only summarize the facts related to Johnson to the extent necessary to decide whether dismissal of McChurch and Papish's claims is warranted.

Defendant Johnson was one of Massaro's immediate supervisors at the EMCC. Beginnig in the summer of 2004 and continuing through August 16, 2005, when Johnson was discharged, Johnson repeatedly made unwanted sexual advances toward Massaro and engaged in other verbal conduct of a sexual nature toward Massaro. Massaro repeatedly made it clear to Johnson that those types of conduct were unwanted and unwelcome. Specifically, Johnson regularly stayed in Massaro's work area, flirted with Massaro, and attempted to engage Massaro in discussions about homosexual sex. This conduct continued despite Massaro telling Johnson that he was not gay and that he wanted this behavior to stop. Johnson also made numerous inappropriate comments towards Massaro such as commenting that Massaro had "a nice butt", asking Massaro if he was out of breath because he had been lying down in bed with inmates, asking Massaro to talk to him about his homosexual fantasies, attempting to engage Massaro in conversations about watching the inmates in the showers and the size of the inmates' penises, telling Massaro that he had imagined him in a hot tub with other men with "sperm floating around" and that is why Massaro's hair was so shiny, and many other sexually related comments and actions.

Approximately one month after the harassing behavior began, Massaro reported the behavior to McChurch, Papish, and Osborne. McChurch, Papish, and Osborne allegedly told Massaro that Johnson was probably gay and "coming out" and nothing was done about it. After being made aware of Johnson's conduct towards Massaro, Papish allegedly told Massaro "[y]ou can either confront him or suck him off, and you're not the type to confront him." Papish then said "Something must have happened to you as a kid, some janitor, school teacher or priest must have touched you or broke it off in you." Massaro also claims that Defendants failed to take timely and appropriate corrective action to stop the harassment and that Defendants repeatedly ridiculed Massaro because his appearance and manner did not fit the masculine male stereotype. Massaro also alleges that Defendants did not ridicule female employees whose appearance and manner did not fit the feminine female stereotype.

Massaro opposed Defendants' activities and complained to his supervisors. After nothing was done to remedy the situation, Massaro complained about these activities to the Internal Affairs department in the Spring of 2005. As a result of the complaints, McChurch claims that Defendants retaliated against him. Specifically, Massaro was reassigned to a different shift (first shift) which was less favorable. Additionally, Papish insisted that he be the union representative who accompanied Massaro to Massaro's interviews with Internal Affairs despite the fact that Papish was one of the perpetrators and even though Massaro requested a different union representative. At the Internal Affairs interview, Papish laughed out loud as Massaro told the investigators his account of what was occurring. Papish also repeatedly referred to Massaro, in person and over the intercom at work, as "Sgt. Dangle," which is a reference to a homosexual character in the television series "Reno 911." Papish asked Massaro is he wore "pink hot pants," asked Masssaro if he danced at and frequented gay bars, and called Massaro gay. Finally, Papish tried to rub soiled inmate underwear on Massaro and told Massaro to "file an incident report about that."

Massaro also alleges that various Defendants threw Massaro's mail in the garbage, hid his employee uniforms, and slashed his tires. Additionally, Massaro received numerous phone calls from EMCC employees telling Massaro not to report the behavior and received telephone calls from men using feminine voices who hung up when Massaro answered the phone. In May 2005, the other officers began to treat Massaro differently by filing to cooperate with him, refusing to give him important information about inmates, yelling at him, stating that he was "wired," had a camera in his nametag, and suggesting that other employees should not talk to him. Other officers allegedly called Massaro names such as "suck ass" and "Phony Tony." On May 22, 2005, the roll call officer intentionally pushed another officer into Massaro, spilling coffee all over Massaro, and said "it couldn't have happened to a better person."

Defendant McChurch attempted to physically intimidate Massaro by kicking in the door of the administration office, almost hitting Massaro, and then standing in front of Massaro with his chest puffed out staring at Massaro. After the Interal Affairs investigation began, Papish and McChurch demanded that Massaro lie to Internal Affairs about their knowledge of the harassment and leave their names out of it. Papish demanded that Massaro meet with McChurch to "get the story straight." McChurch called Massaro repeatedly to come over to McChurch's house. When Massaro went to McChurch's house, McChurch told Massaro to lie about his involvement and threatened Massaro by showing him pictures of McChurch performing karate, and telling Massaro "I'm the best at karate, I'm a weightlifter, you need to listen to me."

Additionally, Defendant Osborne came to Massaro's home and insisted that Massaro meet with him and Papish. At the meeting, Papish attempted to convince Massaro not to report the conduct and offered to help him get a lawyer and "get a lot of money out of this" if he cooperated. Moreover, Papish came to Massaro's home and attempted to intimidate Massaro into not reporting the behavior.

As a result of Defendants' conduct, Massaro was ostracized by fellow employees and subjected to a barrage of offensive behavior and comments destroying his relationships with co-workers and interfering with his ability to perform his job as a correctional officer in the dangerous environment of a prison. Finally, Massaro contends that his response to the unwelcome sexual advances and other verbal conduct of a sexual nature by Johnson was a motivating factor in tangible employment action taken against him, including his transfer from one shift to another less favorable ...

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