The opinion of the court was delivered by: Gilbert, District Judge
This matter is before the Court on Captain Phil Sylvester's (Sylvester) motion for summary judgment (Doc. 38), the Illinois State Police (ISP) and Thomas Stehley's (Stehley) motion for summary judgment (Doc. 40) and Belinda Storey's (Storey) motion to dismiss her claim against Stehley (Doc. 59). Storey has responded to defendants' motions (Docs. 57, 58), defendants have replied to her responses (Docs. 64, 67), and ISP and Stehley have responded to Storey's motion (Doc. 60). For the following reasons, Storey's motion to dismiss will be GRANTED, Sylvester's motion for summary judgment will be GRANTED and ISP's motion for summary judgment will be GRANTED in part and DENIED in part.
Storey filed her four-count complaint against ISP, Sylvester and Stehley on January 31, 2005, claiming defendants sexually harassed her, committed gender discrimination and retaliated against her, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Title VII), and 42 U.S.C. § 1983.*fn1 (Doc. 1). Storey filed two charges of discrimination with the Equal Employment Opportunity Commission (EEOC) based on the events recounted below. In her first charge, filed October 2, 2003 (Doc. 44-4 at 1), she claimed Sylvester sexually harassed her, and after she refused his advances, he and others retaliated against her by denying her deserved promotions, imposing unwarranted discipline, and by not giving her sufficient work to do. She filed her second charge May 1, 2004 (Doc. 44-5 at 2), claiming ISP denied her a liaison position with the FBI for which she was qualified. She believes ISP denied her this position because of her sex and in retaliation for filing her internal complaint with the Equal Employment Opportunity Office (EEO) of the ISP and her first charge with the EEOC.
Construing the evidence in the light most favorable to Storey, and drawing all reasonable inferences in her favor, the admissible evidence establishes the following facts:
A. Pre-Investigation: 1997 to January 2003
From mid-1997 to April 2002, Storey was a police officer assigned to ISP's facility in Carmi, Illinois -- District 19. When she started at Carmi, Storey held the rank of sergeant and was under the supervision of Master Sergeant Ken Clore (Clore). Storey received satisfactory (or better) employment evaluations during her tenure there. The tone of these evaluations was demonstrably positive; her evaluators described her as "an asset to the ISP," "an excellent employee," and "a good supervisor." (Docs. 57-5, 57-7, 57-10, 57-12, 57-13). Two events changed this situation: Sylvester became commander of Zone 7*fn2 in December 2000 and Storey divorced her husband in February 2001.
Sylvester began to ask Storey out, both at work and the gym, almost immediately after her divorce. Storey eventually agreed to go out with him "as friends" and the two went to Paducah, Kentucky for dinner and a movie on March 10, 2001. (Doc. 57-73 at 13). This was the pair's only "date."*fn3 After going to Paducah, Sylvester repeatedly asked Storey out and for permission to come to her home. In response to Sylvester's requests, Storey told him she "wasn't ready for a relationship" and that she was not interested in dating anyone so soon after her divorce. (Id. at 12). Undeterred, Sylvester showed up at Storey's house uninvited on March 16, 2001, with beer and a movie. Storey let him in, and, eventually, the two kissed. Storey pushed his hands away when he attempted to touch her breasts and genitals. It is not clear whether Sylvester made physical contact on this occasion. When Storey told him she was not ready for a physical relationship, he laughed at her and promptly left. (Id. at 14-18). Sylvester's behavior continued unabated despite her rebuff. In May 2001, he showed up at her hotel room (she was staying in a hotel after moving out of her house) uninvited, with beer, several times. Storey let him kiss her on these occasions but pushed him away when he attempted to touch her breasts and thighs. (Doc. 57-74 at 4-8, 11-12). Like before, he laughed at her when she pushed him away.
Clore, Storey's supervisor at District 19, retired in July 2001. Storey wanted his position and felt, based on Clore's statements and her experience, that she was in line to succeed him. Sylvester was aware of Storey's desire in this regard. Sometime in June, Sylvester told her he was in a position "to make [the promotion] happen." (Id. at 13). This suggestion offended her; she told him she "could get it on [her] own on [her] own merit and work ethic." (Id.). In July 2001, Storey was appointed acting master sergeant in the Carmi office. While she held this position (from July 2001 to March 2002), Sylvester continued to ask her out at the gym and at work. Storey always refused him. (Id. at 16-18).
Sometime in late 2001, Sylvester directed one of Storey's supervisors, Mervin Gillenwater (Gillenwater), to let her know that he (Sylvester) would like to meet with her. Sylvester told Gillenwater to find out whether Storey would like to work in the Zone 7 office in Marion. (Doc. 57-19). Storey agreed to meet with Sylvester. At the meeting, Sylvester told her that Al Burton would be replacing her as acting master sergeant in Carmi. Though Storey did nothing wrong, Sylvester told her he felt Burton was better suited for the job. (Doc. 57-75 at 3). Burton did not immediately succeed her, so Storey was left in a state of flux until Sylvester called her after the holidays and told her that she would remain the acting master sergeant indefinitely. (Id. at 4-5).
Though unaware of these activities at the time, in March 2002, Sylvester made contradictory recommendations regarding Storey's fitness for promotion to one of his supervisors, Colonel Charles Brueggemann (Brueggemann). (Doc. 57-15 at 6). He recommended both that she remain acting master sergeant in Carmi and that she become his staff officer and transfer to Marion. (Id., Doc. 57-20 at 2).*fn4 Though some of his comments were apparently negative, at one point, he told Brueggemann that he felt Storey was "his strongest actor." (Doc. 57--20 at 2). Brueggemann did not want Sylvester to transfer Storey to Marion, so Sylvester had Gillenwater see if Storey would transfer there voluntarily. After some cajoling, Storey decided to transfer to the Marion office effective April 1, 2002. (Doc. 57-75 at 11-12, 14). She feels that Sylvester manipulated her into taking this position both by appealing to her family situation (being closer to her children) and with not so subtle indications that she would not retain her position in Carmi for long.
In July 2002, Sylvester asked a mutual friend, ISP Investigator Don Grazkewicz (Grazkewicz), to "fix" Storey and he up. (Doc. 57-75 at 72). Grazkewicz attempted to put together a double date between the couple, and he and his wife. Storey told Grazkewicz she would think about it, but nothing ever materialized from this exchange. Also in July, Sylvester repeatedly paged Storey while she was on a weekend getaway with her boyfriend. Storey attempted to return his pages, but Sylvester did not answer his phone. The next week, Sylvester was upset that Storey did not return his pages and called her into his office to discuss the matter further. Among other things, Storey told him she was uncomfortable with him paging her for personal reasons. Sylvester went on to question Storey about her relationship with the man she was seeing. She told him her current relationship was none of his business. Sylvester then told her he wanted a relationship with her and that, "We'll date two years before we get married." (Doc. 57-76 at 1). She told him that was the worst thing he could say and then promptly left. In September, Sylvester came into Storey's office and asked her if she was serious with the guy she was dating. (Doc. 44-5 at 4). Construing this question yet another dating overture, she told him directly she would not go out with him because he was her captain, and did not feel that the relationship would be proper. (Id.).
Storey received her worst yearly performance evaluation of her career in August 2002. This evaluation was performed by Master Sergeant Tom Oliverio, her direct supervisor. (Docs. 57-22 at 1, 57-76 at 2). Before supervisors in the ISP rate those under their command, the supervisory personnel conduct a group rating session where the officers discuss who they think is ready for promotion. (Doc. 44-5 at 13). Oliverio had not been Storey's supervisor for the entire review period, so, during the rating session, Sylvester and Stehley told him Storey had violated ISP protocol earlier that year when she improperly utilized ISP's Tactical Response Team (TRT). (Doc. 44-6 at 3). Apparently, she failed to go through the appropriate chain of command for activating the TRT in late 2001 or early 2002. (Id.). Before the rating session, Oliverio determined the approximate numeric scores he felt each individual subject to his review deserved. (Doc. 44-5 at 12). At this point, the facts become disputed. On the one hand, Storey claims that when she complained to Oliverio about her review, he told her he tried to get her higher ratings, but that his "hands [were] tied." (Doc. 57-76 at 3). The record also indicates that he complained to his boss about the pressure he received to give Storey lower ratings; he told her he felt Storey deserved a higher score. (Doc. 57-20 at 3). On the other hand, in his affidavit, Oliverio claims he neither requested nor received any outside input before he completed Storey's predetermination. After considering Storey's improper activation of the TRT, he says he may have lowered Storey's numeric rating in one category, one point, but that her rating remained within one or two points of his predetermination figure. (Doc. 44-5 at 14).
In August 2002, Sylvester promoted Sergeant John Barr (Barr) to acting master sergeant in the Marion office. Barr had a decidedly troubled professional history; he was reprimanded and suspended a number of times from 1995-1999 for, among other things, utilizing his official vehicle while on duty in furtherance of an extra-marital affair, providing false information, and conduct unbecoming an officer. (Docs. 57-24, 57-25, 57-26, 57-27, 57-28). In addition to his extensive disciplinary record, Barr was not certified for a promotion to master sergeant. Storey was. (Doc. 57-14 at 12). Though his August 2002 evaluation was 79, 12 points higher than Storey's that year, some of his previous employment evaluations were substantially lower than Storey's: his rating in 2001 was 48 (to Storey's 79), his rating in 1997 was 44 (to Storey's 63); however, in 1998 he received a 71 (Storey had a 70). (Docs. 57-12, at 1, 57-30 at 1, 57-31, at 1, 57-32 at 1, 57-34). After his promotion, Barr's ratings were substantially lower: he received a 69 in 2003, a 54 in 2004, and a 68 in 2005. (Docs. 57-35 at 1, 57-36 at 1, 57-37 at 1). Despite Barr's previous disciplinary problems and history of poor evaluations, the commanding officers in Zone 7 identified Barr as the top candidate for promotion and none felt Storey was ready for promotion. (Doc. 44-6 at 4, 44-5 at 13).
In October or November 2002, Storey questioned Sylvester regarding Barr's promotion. Among other things, he told her Barr was a "better, stronger man." (Doc. 57-76 at 8). In October 2002, Sylvester made several comments to Storey that she found offensive: in the context of a conversation about motorcycles, he asked her if she "[wore] anything under [her] chaps[;]" he also said, "Oh, there's trouble" when he saw her walking down the hall at work. (Doc. 57-76 at 82-83). In November or December of that year, Sylvester asked Storey what was wrong her. She told him she was upset about her negative performance evaluation (see below). In response, he asked her "when are we going to go out again." (Doc. 57-76 at 17).
Barr became Storey's supervisor in September 2002. He told Storey sometime in November that Sylvester and Stehley had told him to document negative things about her. (Doc. 57-76 at 14). Storey asserts that he fulfilled his obligation in this regard on November 14, 2002, when he attempted to submit a negative evaluation, or counseling memo, into Storey's personal file. Among other things, the evaluation indicated that Storey had been turning in her paperwork late and, most importantly, that she had illegally used a wiretap. She spoke to Barr about these complaints on November 13, and felt that she had cleared up matters to Barr's satisfaction. Nevertheless, Barr told her that Sylvester ordered him to put the evaluation in her file anyway. (Doc. 57-38). During a meeting with Sylvester and Stehley about this evaluation on November 18, Storey explained her side of the story. When she left the meeting, she felt she had resolved the issues raised in the evaluation and that it would not be put in her file.
Barr converted the counseling form into a memo to Stehley, and gave Storey a copy of this memo on December 2, 2002. (Doc. 57-40). Storey responded to Barr's memo by writing a memo to Stehley of her own. In this memo, she explained her belief that Stehley and Sylvester had ordered Barr to manufacture evidence against her and that Barr wrote the memo at their direction against his will. (Doc. 57-41). She gave this letter to Stehley on January 6. Stehley responded to Storey by letter on January 8, 2003. (Doc. 57-41). In this letter, Stehley denied that he and Sylvester ordered Barr to "try and get documentation of wrongdoing" by her on paper. Stehley said they were satisfied with her explanations regarding the wiretap, but still felt the other information in the memo was correct. Thus, he ordered Barr to make a change to the memorandum, the corrected copy of which was dated January 8 and put into her file. (Doc. 57-43).
B. Storey's Internal Complaint and Subsequent Investigation
On December 11, 2002, pursuant to her request, the EEO's Program Manager, Suzanne Bond (Bond), mailed Storey an ISP discrimination complaint form. (Doc. 57-44). Storey met with Bond to discuss her complaint on January 6, 2003. (Doc. 57-77 at 14-15). She told Bond of Sylvester's pursuit of her, and Bond then added sexual harassment allegations to the complaint, which was officially filed January 7, 2003. (Id.).
After the complaint was filed, Sylvester's supervisor, Lt. Colonel Terry Remelius (Remelius) hand-delivered a letter from his boss, Brueggemann, informing Sylvester of Storey's allegations. (Doc. 44-10 at 12). In this letter, Brueggemann told Sylvester to take his personal things from the Marion office and to work from the Effingham office until further notice. Brueggemann ordered Sylvester not to return to the Marion office without permission, not to discuss the complaint with anyone but the investigators and not to act in Storey's chain of command. (Docs. 44-5 at 7, 44-10 at 3, 44-10 at 12).
The EEO and the Division of Internal Investigations (DII) began their joint investigation of Storey's complaint on January 10, 2003. (Doc. 57-29 at 1). They conducted interviews of the principal actors during the next several months, but did not interview Sylvester until April 23. (Id.)
The DII submitted its report on June 24, 2003. Based on the information Sylvester admitted, it concluded that Sylvester improperly discussed the investigation with ISP employees after he was instructed not to do so and that he improperly had a personal relationship with a subordinate. (Doc. 57-47 at 1).
The EEO made its determination on July 14, 2003. (Doc. 57-48). It found 1) sufficient evidence that Sylvester had improperly pursued a personal relationship with Storey, 2) sufficient evidence that Storey transferred to Zone 7 because of Sylvester's cajoling, and 3) sufficient evidence that Sylvester's decision to make Barr acting master sergeant was based on Storey's refusal to succumb to his advances. It found 4) insufficient evidence to suggest Sylvester ordered subordinates to scrutinize Storey's work. Though it found 5) insufficient evidence Sylvester negatively influenced Storey's August 2002 performance evaluation because she refused his attention, it did find 6) sufficient evidence that this evaluation was not based on objection evidence. (Doc. 57-48 at 2-4).
As the Disciplinary Review Board had already recommended that Sylvester be suspended for 60 days as a result of this conduct, the EEO felt that no further action needed to be taken against him. (Id. at 4). Importantly, the Review Board did not file a complaint with the ISP Merit Board, a precondition to the implementation of the suspension, because Sylvester was set to retire on July 17, 2003. (Doc. 57-50).
The Director of the ISP, Larry Trent (Trent), informed Storey by letter that he determined there was evidence to suggest that she was subject to conduct in violation of two ISP policies: ISP PER-032 ("Discrimination Complaints") and PER-33 ("Harassment"). He told her he was recommending the implementation of corrective measures. (Docs. 57-51, 57-52, 57-53).
On August 22, 2203, after Storey received the EEO's determination, she met with Brueggemann, Remelius, and Bond to discuss the resolution of her complaint. (Doc. 57-78 at 3). Storey was quite upset when she learned that Sylvester did not lose any pay and did not have to serve any suspension. Brueggemann told her ISP decided not to force the few days' suspension on Sylvester because it would have cost to too much money if he were to fight the suspension. (Id. at 6). Storey made it clear at the meeting that she was not pleased with Sylvester's punishment (or lack thereof). She also told them she wanted a promotion and that she wanted to be placed in Carmi. Brueggemann told her he could not promise her a promotion, but that he would see about the transfer to Carmi. Remelius contacted her a few days after the meeting to see if she would like to work at Carmi; she told him she planned to get a lawyer. (Doc. 57-78 at 4).
Director Trent wrote her another letter on October 14, 2003. In the letter, he told her he would assign her the Administrative Commander position in Carmi, which would have been a master sergeant's position, and approximately $7,000.00, to compensate for the pay she would have received if she would have remained as the acting master sergeant in Carmi. (Doc. 57-54 at 1). The ISP never took the measures offered by Trent in his letter, which was apparently because Storey filed her first EEOC charge on October 2 and told Remelius she planned to get a lawyer.
At Storey's request, Sylvester transferred her to the Public Integrity Unit (PIU) in Marion, effective January 1, 2003. (Doc. 57-55). According to Storey, she requested the transfer (it is not clear if she actually requested to be transferred to the PIU) because she felt she could no longer trust Barr. (Doc. 57-77 at 6). She lost trust in him because he told Sylvester that Storey had complained to him of Sylvester's conduct (this occurred sometime in November 2002). (Id.). Storey was displeased with her transfer to the PIU, and felt it was an inferior assignment. She had very little work to do in her new position, and would sometimes go for a week without working on anything at all. (Doc. 57-78 at 2). She was so humiliated by her lack of work that she rearranged her office furniture so that others could not see her work area from the hallway. (Id.). Before working for the PIU she was a supervisor; in the new assignment, she had very little to do.
In April 2003, Storey received an employment evaluation from Oliverio, which outlined areas where she was having problems and areas where she could improve. (Id., Doc. 57-46). This "needs improvement" evaluation was the first of her career. In this evaluation, Oliverio said Storey needed to make more detailed reports and cut down on spelling errors. (Doc. 57-46 at 2). He also commented on Storey's request to assist the general criminal unit (GCU) to supplement her PIU activities, stating, "Storey has demonstrated little initiative in seeking additional responsibilities." (Id.). Despite her request, Storey was not ...