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Gordon-Phillips v. Illinois State Police

November 8, 2006


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


This case is before the court for ruling on the Motion for Summary Judgment (#19) filed by Defendant, Illinois State Police. This court has carefully reviewed the arguments of the parties and the documents provided by the parties. Following this careful and thorough review, Defendant's Motion for Summary Judgment (#19) is GRANTED.


Plaintiff, Ruby Gordon-Phillips, was hired by Defendant in 1978. Plaintiff is an African American female. Plaintiff initially worked as a telecommunicator in Pesotum, Illinois. In 1989, Plaintiff transferred to the Champaign, Illinois, investigations office in a clerical position. On December 23, 2002, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human Rights. Plaintiff alleged in her charge that she was not promoted to an Administrative Assistant I position because of her race and age. On April 18, 2003, Plaintiff filed an amended charge of discrimination and claimed retaliation. On September 3, 2003, Plaintiff signed a settlement agreement which settled both of her charges of discrimination. As part of the settlement agreement, Defendant agreed to promote Plaintiff to the position of Administrative Assistant I. Plaintiff's promotion to this position became effective on November 1, 2003.

On January 1, 2004, Bruce Zywiec was assigned to Zone 5 of the Illinois State Police in Champaign, Illinois, as the commander. Zywiec became Plaintiff's supervisor at that time. Plaintiff testified that she was the supervisor of Nancy Shunk, who was an office coordinator in the Champaign office. Shunk retired on April 30, 2004. Zywiec testified that, shortly after he arrived at Zone 5, Plaintiff advised him that she had previously filed an EEOC charge of discrimination against Defendant.

Zywiec testified that, within the first few weeks after he moved to Zone 5, he noticed that Plaintiff had a "pungent odor." Zywiec spoke to Russ Perkins about it and Perkins told him "it was a long-standing issue and that it was well-known in the Zone." Zywiec also spoke to Jerry Culp who said that "he had noticed it himself and that he believed it was a long-standing issue in the Zone." Zywiec testified that another employee, Jeff Marlowe, approached him and said that Plaintiff had "a long-standing issue of having bad body odor intermittently" and that he kept a can of air spray in his office to use when Plaintiff left the office. Zywiec testified that Master Sergeant Frank Young also approached him and said that several times when Plaintiff had come to his office for training she had a bad odor that was "terrible" and required him to air out his office afterwards. Zywiec testified that Ben Halloran brought up Plaintiff's odor problem and Brian Henn talked about Plaintiff's intermittent bad odor. Zywiec testified that two of Plaintiff's former supervisors, Steve Fermon and John Strohl, confirmed that they had noticed an odor problem with Plaintiff. Edie Casella, another former commander, said that she had not noticed a problem.

Zywiec testified that he spoke with Colonel Diane Carper, his supervisor, about how to handle the problem. Carper concurred with Zywiec's suggestion that they hold a meeting to "see how we could do this in a kind manner and professional manner with her." Zywiec testified that he subsequently met with Susan Yokley from EEO, someone from personnel, and either Carper or Ken Yelliott.*fn2 Zywiec testified that Yokley was included because it was a "sensitive issue" and Plaintiff had previously filed a charge of discrimination. Zywiec testified that they decided that he should contact Al Lewin, who was in charge of Defendant's Human Services Department, to seek advice on the right way to approach this kind of issue.

Zywiec testified that Lewin recommended that Jill Allen, a Human Services employee who was a psychologist, would be the appropriate person to approach Plaintiff about the issue. Following another meeting, it was decided Zywiec would set up a meeting between Plaintiff and Allen. On June 7, 2004, Zywiec gave Plaintiff a memorandum which stated:

I am concerned you may have a personal hygiene condition that is negatively impacting our work environment. I am not charging you with wrongdoing; however, I feel I would be remiss in my duties as a supervisor if I did not attempt to address the issue. Because I consider the matter private and confidential, I have scheduled a meeting for you with Sergeant Jill Allen, who is from the Illinois State Police, Human Services Section and is more qualified to address this situation with you than I am.

The meeting is scheduled for tomorrow at 1:00 P.M. in my office and should be considered mandatory. I will not be in attendance, but I am confident Sergeant Allen will be able to answer any questions you may have. Thank you for your cooperation.

Zywiec testified that Allen informed him by e-mail that the meeting did not go well and Plaintiff denied that she had any kind of problem. Zywiec testified that he later set up a meeting with Plaintiff, but Plaintiff met with him with her union representative and said that she was not talking.

On June 30, 2004, Plaintiff presented Zywiec with a note written by her doctor, Robert Boone, M.D., which was dated June 29, 2004. The note stated, "I examined Ms. Phillips[,] she does not have any abnormal odors or hygiene problems." Dr. Boone also wrote a note, dated June 30, 2004, which stated that Plaintiff would be unable to work for 45 working days because of "multiple ongoing medical concerns." Plaintiff's request for leave under the Family Medical Leave Act was subsequently approved. Plaintiff has not returned to work for Defendant and resigned effective September 30, 2004.

Zywiec testified about a situation he handled regarding complaints that Lieutenant Jerry Culp was expelling gas through flatulence in the presence of other employees. Zywiec discussed the problem with other employees and spoke with Culp three times about the problem. Zywiec also placed a memorandum in Culp's personnel file indicating that any further conduct could result in discipline. Zywiec testified that the memorandum has since been removed from Culp's file. It is undisputed that, other than the situations involving Plaintiff and Culp, Zywiec has never had any other complaints about the body odor or hygiene of employees.

On July 22, 2004, Plaintiff filed a charge of discrimination with the EEOC and the Illinois Department of Human Rights. Plaintiff alleged that she suffered harassment and retaliation after she filed her earlier charges of discrimination and after she complained of harassment in a meeting with Carper in August 2003.*fn3 After she received a Notice of Right to Sue from the EEOC, Plaintiff filed her Complaint (#1) in this court claiming retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e-3. On September 29, 2006, the parties filed a Stipulation (#18) which stated that the "alleged retaliatory conduct at ...

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