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Johnson v. City of Marseilles

January 8, 2008


The opinion of the court was delivered by: Judge Joan H. Lefkow


Pamela Johnson filed a three-count complaint against her former employer, City of Marseilles, and James Bradley Herzog, allegingclaims of sexual harassment under Title VII (Count I) and 28 U.S.C. § 1983 (Count II), as well as a claim of retaliation under Title VII (Count III). Before the court is defendants' motion for summary judgment on all counts. For the following reasons, defendants' motion for summary judgment [#21] is granted with respect to plaintiff's § 1983 claim (Count II) and denied with respect to her Title VII claims for sexual harassment (Count I) and retaliation (Count III).


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in the depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact is one that might affect the outcome of the suit. Insolia, 216 F.3d at 598--99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). In the context of employment discrimination, "summary judgment is warranted where the evidence, interpreted favorably to the plaintiff, could not persuade a reasonable jury that the employer had discriminated against the plaintiff." Jones v. Union Pacific R.R. Co., 302 F.3d 735, 739--40 (7th Cir. 2002) (internal quotation marks and alterations omitted). BACKGROUND*fn1

Johnson was employed by the City of Marseilles ("the City") as a "dispatcher/911 operator and administrative assistant" from September 2000 until November 2004. Defs.' Local Rule 56.1 Statement (hereinafter Defs.' Statement) ¶¶ 1, 70. The City of Marseilles Police Department, in order of chain of command, consists of the chief of police, James Hovious; a lieutenant, Kenneth Sangston; two sergeants, Brian Faber and defendant J. Bradley Herzog; five full-time sworn police officers; and four full-time dispatchers, of which Johnson was one. Id. ¶ 5. Chief Hovious was the immediate supervisor of the dispatchers and, in his absence, Lieutenant Sangston supervised them. Id. ¶ 6.

Johnson alleges that she was sexually harassed by Herzog, both in person and through emails. Johnson and Herzog did not work the same shift. Id. ¶ 16. Herzog sent Johnson at least fifteen sexually-suggestive emails in which he used sexually-explicit language, made overt solicitations for sex, and on at least one occasion described a particular sexual act he desired to engage in with her. Defs.' Statement ¶¶ 38--49; Pl.'s Statement ¶ 3. Johnson saved ten such emails from Herzog, the earliest dated July 25, 2002 and the latest dated February 14, 2004. Defs.' Statement ¶ 37. Johnson also alleges that Herzog physically assaulted her on multiple occasions, including (1) a number of incidents when he tried to touch her buttocks and (2) an incident that occurred in the police station around Halloween 2003 when he tried to kiss her, put his hands along the side of her breasts, and turned her over a desk before she freed herself from him. Defs.'s Statement ¶ 56; Pl.'s Resp. to Defs.' Statement ¶ 56.

Johnson also alleges that Chief Hovious sexually harassed her on a number of occasions when he (1) said to her in front of co-workers at a police cookout in 2001, "Pam[,] we know how familiar you are with back seats of cars"; (2) made a comment to her about trying to get Herzog to have sex with an unattractive property owner so that they could hunt on the land; (3) in a conversation in 2003, told her that an officer had confronted him about a rumor that Hovious and Johnson were caught having sex in Hovious's office, to which Hovious had responded that it was not in the office but at the convention center; (4) referred to Johnson on one occasion as a "cocksucking smartass"; and (5) frequently referred to Johnson as "bitch." Defs.' Statement ¶¶ 60--63, 76.

The City had a written policy prohibiting sexual harassment, copies of which were distributed to all employees. Defs.' Statement ¶¶ 9--10. Herzog was a shift supervisor for patrolmen and did not have any significant supervisory or disciplinary authority over the dispatchers. Defs.' Statement ¶ 14--15. Nevertheless, the parties agree that under the City's sexual harassment policy, Herzog and Sangston, like Hovious, were "supervisory personnel" for reporting purposes. Pl.'s Statement ¶ 1. Johnson admits that she engaged in sexually suggestive conversation with other members of the department; as Johnson explained in her deposition, "that was the environment" and it was "not uncommon." Defs.' Statement ¶ 58. Johnson also admits that one of the ten offensive emails that she saved was sent by Herzog in response to an email from Johnson in which she had written only the words "did you forget me?" Defs.' Statement ¶ 39.

On July 25, 2002, Herzog sent Johnson an email that was particularly vulgar.*fn2 Around the end of February or early March 2003, Johnson opened this email on the screen of her computer and showed it to Sangston. Defs.' Statement ¶ 65; Pl.'s Resp. to Defs.' Statement ¶ 65. According to Johnson, Sangston replied "Oh my God[,] Pam[,] this is bad," and said that he would take care of it. Defs.' Statement ¶ 65. While the parties agree that this conversation between Sangston and Johnson took place, Sangston claims that, at Johnson's request, he promised her that he would not tell anyone about the email.*fn3 Defs.' Resp. to Pl.'s Statement ¶ 8. Nevertheless, within a few days of seeing the July 25, 2002 email, Sangston informed Hovious about it. Defs.' Resp. to Pl.'s Statement ¶ 8.According to defendants, Hovious asked Sangston if he thought Johnson's showing him the email was a complaint, and Sangston said, "[N]o, I didn't take it as a complaint, and she promised me [sic] not to tell anybody." Defs.' Reply to Pl.'s Statement ¶ 8. According to defendants, Hovious then asked Sangston, "[W]ell, did you tell her to come to me and bring it up?"; when Sangston responded, "[Y]eah," Hovious replied, "I'm not going to solicit any complaints from her. We'll see if she comes to me . . ." Id. Neither Sangston nor Hovious confronted Herzog in response to Johnson's reporting to Sangston about the offensive email. See Defs.' Reply to Pl.'s Statement ¶ 8.

Johnson alleges that on January 20, 2004, she attempted to speak with Hovious about Herzog's conduct, but before she was able to provide any details, Hovious cut her off with the comment, "Brad is Brad."*fn4 Pl.'s Resp. to Def.'s Statement ¶ 68; Def.'s Statement, Ex. 1, at 000015.

In mid- to late- February 2004, Johnson showed Sangston another sexually-suggestive email from Herzog, this one dated February 14, 2004.*fn5 Pl.'s Resp. to Defs.' Statement ¶ 66. On March 11, 2004, Sangston had another conversation with Johnson in which he told her that he had done some research and determined that she was the victim of sexual harassment and that she needed to report the harassment to the chief and the police commissioner. Defs.' Statement ¶ 67.

On or about April 30, 2004, Johnson met with Hovious and Sangston about the offensive emails, which-she had made clear to them-she wanted Herzog to stop sending. Pl.'s Statement ¶¶ 10, 13. Based on these conversations, Hovious believed that (1) Johnson's complaints were made in good faith; (2) Herzog's emails to Johnson were not consensual; and (3) Herzog was sexually harassing Johnson. Pl.'s Statement ¶¶ 10--14. Defendants admit that Johnson felt physically threatened and frightened by Herzog. Pl.'s Statement ¶ 34.

On May 24, 2004, Johnson met again with Hovious and Sangston and informed them that she felt overwhelmed and could not work anymore, and that she was not feeling well. Pl.'s Statement ¶ 19. Johnson had to leave the meeting because she was sick. Pl.'s Statement ¶ 20.

On June 10, 2004, Johnson was assigned to work on the same night shift as Herzog, which would require her to be alone with Herzog. Pl.'s Statement ¶ 17. Johnson alleges that the shift reassignment was an act of retaliation against her in response to her complaints about sexual harassment. Defendants claim that the reassignment was the result not of retaliation but of Mayor Donald Bolatto's decision, long before he had ever heard of Johnson's complaint, to implement a department-wide change in shifts in order to reduce the police department's operating budget. Defs.' Statement ¶ 21. Defendants further allege that Johnson's reassignment was based on the bidding system put into place by Police Commissioner Gary Lewey in which each dispatcher bid on his or her shift preference and bid preferences were ranked by the seniority of each dispatcher. Defs.' Statement ¶¶ 24. Johnson's shift preferences were subordinate to two dispatchers who had been hired earlier. Defs.' Statement ¶ 32. Thus, defendants argue, the decision that ultimately resulted in Johnson's shift assignment was initiated by the mayor and implemented by Commissioner Lewey, neither of whom knew about Johnson's sexual harassment complaints when they devised the plan. See Defs.' Statement ¶¶ 29--30. Defendants also argue that, given her seniority over at least one other dispatcher, Johnson and Herzog would not have been on the same night shift if Johnson had so chosen. Defs.' Statement ¶ 32. Johnson denies that she was given a choice as to whether she would be assigned to the night shift with Herzog. Pl.'s Resp. to Def.'s Statement ¶ 32.

On June 16, 2004, Johnson filed her first charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that the defendants discriminated against her on the basis of her sex. Def.'s Answer to Pl.'s Compl. ¶¶ 24--25. Hovious had actual knowledge that Johnson filed the charge of discrimination with the EEOC. Id. ¶ 27.

Hovious learned from another dispatcher that Johnson thought that her shift reassignment was an act of retaliation against her. Pl.'s Statement ΒΆ 20. Hovious took no action to alleviate Johnson's concerns about the shift reassignment, nor did he ever assure her that Herzog had been disciplined for the ...

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