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Januszewski v. Village of Oak Lawn

March 5, 2007

SHARON JANUSZEWSKI, PLAINTIFF,
v.
VILLAGE OF OAK LAWN, THOMAS MORAN, EDWARD FOLLIARD, MICHAEL BOMAN, AND ROBERT WESSELHOFF, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Sharon Januszewski filed a five-count first amended complaint against defendants Village of Oak Lawn ("Oak Lawn"); Thomas Moran, former Chief of the Oak Lawn Fire Department; Edward Folliard, current Chief of the Oak Lawn Fire Department; Michael Boman, in his individual capacity; and Robert Wesselhoff, in his individual capacity. Count I, filed against defendant Oak Lawn, alleges gender discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq ("Title VII"). Count II, filed against defendant Oak Lawn, alleges retaliation in violation of Title VII. Count III, filed against all defendants, alleges a violation of plaintiff's equal protection rights under 42 U.S.C. § 1983. Count IV, filed against all defendants, alleges retaliation in violation of plaintiff's First Amendment and equal protection rights under 42 U.S.C. § 1983. Finally, Count V, filed against all defendants, alleges intentional infliction of emotional distress. Defendant Oak Lawn filed a motion to dismiss Counts III, IV and V of the complaint for failure to state a claim. Defendants Moran, Folliard, Boman and Wesselhoff move to dismiss counts IV and V for failure to state a claim. For the reasons stated below, the court: (1) denies defendant Oak Lawn's motion to dismiss Count III; (2) grants defendants' motions to dismiss Count IV; and (3) grants defendants' motions to dismiss Count V.

FACTS*fn1

Plaintiff has worked as a firefighter for the Village of Oak Lawn Fire Department since June 2000. On June 16, 2003, plaintiff noticed a white substance on her bedding linens, which she kept in her storage bin. Plaintiff later learned that the substance was semen. She reported the incident to Lieutenant Scott Sobol, her commanding officer. Lt. Sobol laughed at plaintiff and later encouraged her to repeat the story to other firefighters. When she told her co-workers that she had washed her bedding, Lt. Sobol stated, "I can't believe you washed it; that could have been your Monica!" On June 28, 2003, plaintiff reported the incident to Battalion Chief Barsevick, and on July 1, 2003, she reported the incident to defendant Folliard, who was then Division Chief. Plaintiff gave her storage bin to defendant Folliard, who then gave it to the Oak Lawn Police Department.

On July 16, 2003, plaintiff took medical leave based on the psychological trauma she allegedly experienced as a result of the incident. Defendant Moran approved plaintiff's leave, and defendant Folliard told plaintiff she would not be "charged" for her leave. When plaintiff returned to work on September 23, 2003, however, she found that the fire department had deducted time from her accrued sick and vacation hours, rather than treating her absence as "duty-related."*fn2

On November 10, 2003, plaintiff complained to defendant Moran about her personal safety concerns and the lack of an internal investigation into the June 16th incident. Defendant Moran told plaintiff that he would not test every member of the department to determine who had ejaculated into plaintiff's bedding and would not request DNA samples from anyone beyond the three individuals who had provided samples voluntarily. Defendant Moran told plaintiff that he did not think she would find the perpetrator and stated, "You can tell your lawyer I said that." He also told plaintiff that there was nothing more that he could do for her, and that "the ball is in [your] court." After plaintiff complained about the incident to her superior officers, several of plaintiff's supervisors and co-workers began "shunning and ostracizing" her and encouraging other male firefighters to do the same.

On April 5, 2004, plaintiff complained to Division Chief Allen that she was concerned for her physical safety because of the lack of an investigation into her complaint. She also complained to Battalion Chief Barsevick about being moved to another shift. On June 6, 2004, plaintiff again complained to defendant Moran, and on March 30, 2005, plaintiff again complained to Allen.

In March 2003, defendant Boman made negative comments about female firefighters and encouraged a superior officer to give plaintiff a negative performance evaluation. Throughout the course of plaintiff's employment with the fire department, she was subjected to sexual advances from defendant Boman. Defendant Boman was plaintiff's superior; he was a lieutenant when plaintiff was first hired and was later promoted to Captain. Defendant Boman would make comments to plaintiff such as, "What are you doing with a guy like [your boyfriend]?" and "If you ever want to leave him, let me know." Defendant Boman also frequently rubbed plaintiff's shoulders. In May 2005, defendant Boman called plaintiff at her home and told her he was "on his way over" to her house. Plaintiff told defendant Boman that she did not want him to visit, but he arrived at her house several minutes later. When he arrived, he brought up the June 2003 incident, and plaintiff complained to him about the lack of investigation by the fire department. Defendant Boman then asked plaintiff out on a date; plaintiff responded that she was not interested in dating him.

According to plaintiff, after she refused to date defendant Boman, he began shunning plaintiff at work. He refused to investigate her complaints about another superior officer making false accusations against her, and he denied her the opportunity to teach Emergency Medical Services ("EMS") training at the Fire Department Academy in 2006, which she had done for several years.

On June 27, 2005, defendant Wesselhoff, plaintiff's supervisor, falsely told his superiors that plaintiff had been "AWOL." On June 29, 2005, defendant Boman told plaintiff that he received a written allegation from defendant Wesselhoff and that he would investigate plaintiff's absence. Plaintiff complained to defendant Boman that defendant Wesselhoff was making false accusations, but the fire department did not investigate her complaint.

On July 4, 2006, defendant Wesselhoff moved the fire house's dinner time without notifying plaintiff. Plaintiff therefore could not eat with the other firefighters, even though the entire team routinely eats meals together. On that day, defendant Wesselhoff also purchased White Castle burgers and wrote on the box, "1st shifters only," when plaintiff was the only person present in the fire house who was not a "1st shifter." Defendant Wesselhoff then said to plaintiff, "We bought those for the rest of the crew. Not for you." He also told her, "It's like you're not even a member of this department, anyway."

Defendant Wesselhoff told plaintiff that Battalion Chief Jensen was angry with her when he was not. Plaintiff brought defendant Wesselhoff's statement to Jensen's attention, but Jensen did not take any action regarding plaintiff's complaint. Plaintiff complained to several other supervisors about defendant Wesselhoff's conduct, but the department did not investigate her complaints and did not discipline defendant Wesselhoff.

On June 18, 2006, plaintiff found a sexually graphic magazine at a shared desk. According to plaintiff, pornography was present in the fire station "every day," including: (1) in the "day room," which is the "living room" for department employees; (2) in the men's bathroom, in which female firefighters showered and which they cleaned as part of their job duties; and (3) in the bunk room, which was shared by male and female firefighters until July 2005. Plaintiff brought the magazine to the attention of her supervisor. The department did not investigate her complaint and did not take any action regarding the magazine. Defendant Wesselhoff told other employees that plaintiff had fabricated her complaint regarding the magazine.

In January 2006, a member of the fire station posted an invitation to the department's holiday party on a public bulletin board. The invitation contained pornographic images. Defendant Folliard, in reference to the invitation, stated at a meeting, "If 'chicks with dicks' is the kind of thing you're into, fine," and "[N]ot that there's anything wrong with chicks with dicks, just keep the chicks with ...


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