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Beverly v. Kaupas

February 29, 2008

CHERYL L. BEVERLY, PLAINTIFF,
v.
PAUL L. KAUPAS, IN HIS OFFICIAL CAPACITY AS SHERIFF OF WILL COUNTY, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Cheryl L. Beverly ("Beverly") filed suit against Defendant, Paul L. Kaupas ("Kaupas" or "Sheriff's Office" or "Defendants") in his official capacity as Sheriff of Will County pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 2000(e) et seq., alleging that Lieutenant Ed Bradley ("Bradley"), an employee of the Will County Sheriff's Office ("Sheriff's Office"), created a hostile work environment and sexually harassed Beverly. Beverly alleges that Kaupas and other Sheriff's Office employees retaliated against her after she reported Bradley's sexual harassment. Kaupas moved for summary judgment on all of Beverly's claims. For the reasons set forth below, Kaupas's Motion for Summary Judgment is granted.

STATEMENT OF FACTS

Beverly is a correctional officer employed by the Will County Sheriff's Office. Pltf. 56.1 Resp. at ¶ 2.*fn1 Bradley is a watch commander and was Beverly's supervisor from January 2000 to November 4, 2004 when they both worked in the Will County Adult Detention Facility (the "ADF"). Pltf. 56.1 Resp. at ¶ 7. Since December 2002, Kaupas has been employed as the Will County Sheriff. Pltf. 56.1 Resp. at ¶ 3.

From January 2004 to June 21, 2004, Bradley made sexually promiscuous comments and suggestions to Beverly. Def. 56.1 Resp. at ¶ 1.*fn2 On many occasions, Bradley made comments to Beverly which included: "let me take care of you;" "put your battery operated toy away;" "I'll take care of you like a man;" and "let me clean your pipes out." Pltf. 56.1 Resp. at ¶ 8. On one occasion in March 2004, Bradley said to Beverly, "come over here, I want you to take your clothes off while I'm sitting with a drink watching you. Then I want you to sit on my lap." Pltf. 56.1 Resp. at ¶ 8. On at least twenty occasions, Bradley tried to run his hands through Beverly's hair. Pltf. 56.1 Resp. at ¶ 8. On at least five occasions, Bradley said to Beverly, "I'm doing you a favor by letting you work in a more favorable post," "say where you want to work," and "let me know where you want to work." Bradley also gave Beverly a note that read, "I'd like to bend you over." Pltf. 56.1 Resp. at ¶ 8. Beverly threw the note in the trash. Id. In April 2004, Bradley grabbed Beverly's hand, pulled her behind the desk where he was sitting, and grabbed her buttocks while simultaneously rubbing her hand in his crotch. Id.

As Bradley's unwelcome behavior toward Beverly increased in frequency, Beverly became more remonstrative. Def. 56.1 Resp. ¶ 10. On one occasion, for example, Beverly walked away from Bradley and Bradley told her, "You are starting to piss me off!" Beverly replied, "You are starting to piss me off too!" Def. 56.1 Resp. ¶ 11. During this same time period, Beverly also endured personal difficulties such as the death of her father and the illness of her mother and daughter. Def. 56.1 Resp. ¶ 3.

During the entire time of her employment with the Sheriff's Office the office had a written anti-harassment policy (the "Policy") which was in place since 1993. Pltf. 56.1 Resp. at ¶¶ 4, 5. The Policy provided procedures for making internal complaints about sexual harassment and for responding to such complaints. Pltf. 56.1 Resp. at ¶ 4. The parties dispute whether the highest ranking members of the office were required to attend yearly training, but agree that deputies, correctional officers, civilian personnel, supervisors, sergeants, and lieutenants, such as Bradley, were required to attend. Pltf. 56.1 Resp. at ¶ 5. Beverly attended the April 24, 2003 sexual harassment training seminar and reviewed the Policy and accordingly, Beverly understood the Policy and her options under the Policy if she were to become a victim of sexual harassment. Pltf. 56.1 Resp. at ¶ 6.

Between January and June 2004, Beverly complained to three Sheriff's Office employees about Bradley's sexually harassing behavior: Sergeant Gina Marotta ("Marotta"), Officer Chris Wilhelmi ("Wilhelmi") and Sergeant Brian Fink ("Fink"). Pltf. 56.1 Resp. at ¶ 22. When Beverly told Marotta, Beverly confided in her as a friend and asked her not to tell anyone about Bradley's behavior nor to "take the matter any further". Pltf. 56.1 Resp. at ¶ 23; Def. 56.1 Resp. at ¶ 17. Due to Beverly's adamant request, Marotta did not report Bradley's conduct. Pltf. 56.1 Resp. at ¶ 24. Although she did not report the matter officially, Marotta told Beverly to tell Bradley to stop the harassment. Pltf. 56.1 Resp. ¶ 25. If Bradley continued to harass Beverly, Marotta told her that shee should report back to Marotta and Marotta would need to do something about it. Id.

In June 2004, Beverly told Officer Wilhelmi about Bradley's sexually harassing behavior.

Pltf. 56.1 Resp. at ¶ 26. Wilhelmi held the same rank as Beverly and did not supervise her. Pltf. 56.1 Resp. at ¶ 27. When Beverly spoke to Wilhelmi she did not believe that she was making an official report of sexual harassment and did not expect Wilhelmi to report the matter nor did she speak to him in the hopes that he would stop Bradley's harassing behavior. Pltf. 56.1 Resp. at ¶ 26. Although Wilhelmi was a union steward and offered to help Beverly by involving the union, Beverly chose not to involve the union. Pltf. 56.1 Resp. at ¶ 28.

In June 2004, Beverly told Fink about Bradley's sexually harassing behavior. Pltf. 56.1 Resp. at ¶ 29. Like Marotta and Wilhelmi, Beverly confided in Fink as a friend and asked him not to report the matter because she believed that Bradley would soon be transferred out of the ADF. Pltf. 56.1 Resp. at ¶ 29. It was Fink's understanding also that Beverly did not want him to make a formal sexual harassment complaint. Pltf. 56.1 Resp. at ¶ 30. Nonetheless, Fink told Beverly that he had to report Bradley's conduct. Pltf. 56.1 Resp. at ¶ 31. Beverly became frustrated and told Fink that she had confided in him as a friend. Pltf. 56.1 Resp. at ¶ 31. Fink advised Beverly about her available remedies under the Policy and told Beverly that she had to make a decision about how she wanted to proceed and report back to him. Pltf. 56.1 Resp. at ¶ 31. After the meeting, Fink reviewed the Policy to ensure that he was acting correctly and concluded that he was not required to report the matter because Beverly refused to make a formal complaint. Pltf. 56.1 Resp. at ¶ 32.

On June 21, 2004, Beverly told Warden O'Leary ("O'Leary") about Bradley's sexually harassing behavior. O'Leary was the highest ranking officer at the ADF. Pltf. 56.1 Resp. at ¶ 33. Upon receiving Beverly's complaint, O'Leary told Deputy Chief David Van Dyke ("Van Dyke") to speak to Beverly and gather details about Bradley's harassment. Pltf. 56.1 Resp. at ¶ 35. In 2004, Van Dyke was in charge of security and operations at the ADF and was Bradley's supervisor. Pltf. 56.1 Resp. at ¶ 35. On the same day, Van Dyke called Beverly to schedule a meeting for the following day. Pltf. 56.1 Resp. at ¶ 36.

On June 22, 2004, Van Dyke met with Beverly in his office and drafted a three-page memorandum to the Undersheriff detailing Bradley's harassment based upon his interview. Pltf. 56.1 Resp. at ¶ 37. Van Dyke forwarded the memorandum to the Undersheriff and recommended that the Internal Affairs Division of the Will County Sheriff's Office ("Internal Affairs") officially investigate Bradley. Pltf. 56.1 Resp. at ¶ 39. Following Van Dyke's recommendation, Undersheriff Martin Nowak ("Nowak") emailed Sergeant Steve McGrath ("McGrath"), an Internal Affairs investigator, and ordered him to investigate Bradley. Pltf. 56.1 Resp. at ¶ 40. Nowak also emailed Van Dyke ordering Van Dyke to have a senior level officer present when McGrath interviewed Bradley so that Bradley would understand that senior management was behind the investigation. Pltf. 56.1 Resp. at ¶ 40.

On June 23, 2004, Van Dyke met with Bradley and ordered Bradley to have no contact with Beverly except as was necessary in the course of business. Pltf. 56.1 Resp. at ¶ 41. It was Van Dyke's belief that had Bradley violated his order, Bradley, at a minimum, would have been suspended. Pltf. 56.1 Resp. at ¶ 41. Van Dyke believed that ordering Bradley to have no contact with Beverly was sufficient to stop any further potential harassment because Bradley had never defied Van Dyke's orders during the ten-year period in which he was employed by the Sheriff's Office. Pltf. 56.1 Resp. at ¶ 41.

Between June 22 and August 5, 2004, McGrath investigated Beverly's complaint. Pltf. 56.1 Resp. at ¶ 42. McGrath interviewed Fink, Marotta, and Wilhelmi and conducted a tape-recorded interview of Beverly and Bradley separately. Pltf. 56.1 Resp. at ¶ 43. At the end of Beverly's internal affairs interview with McGrath, Beverly asked whether the Illinois State's Attorney's Office would pursue criminal charges against Bradley. Pltf. 56.1 Resp. at ¶ 89. McGrath responded: "You're fucked. The state's attorneys aren't going to touch this one." Id.*fn3 According to McGrath, there were no eyewitnesses to Bradley's harassing behavior toward Beverly. Pltf. 56.1 Resp. at ¶ 42. On August 5, 2004, McGrath sent his final report of the investigation to Kaupas. Pltf. 56.1 Resp. at ¶ 43. Having found, in McGrath's opinion, no evidence to corroborate Beverly's accusations, McGrath believed that the Sheriff's Office lacked the authority under the terms of the collective bargaining agreement to formally discipline Bradley. Accordingly, McGrath recommended to Kaupas that Bradley receive no formal punishment. Pltf. 56.1 Resp. at ¶ 44.

According to Bradley, once Beverly's allegations "got out" despite the requirement that they remain confidential, "general comments" were made "all the time all over the jail". Def. 56.1 Resp. at ¶ 34. "People laugh[ed] about it and [made] fun of it. You know, I hear it from people. I mean, that's the general atmosphere of the ADF." Bradley said that co-workers in the ADF "[laughed] about the lawsuit that is pending now." Id. When pressed to name exactly who was laughing and making comments, Bradley stated, "[t]he whole shift. Anybody. Everybody on the department. It is not a hidden fact." Def. 56.1 Resp. at ¶ 34.

From March 2004 to March 2005, Beverly alleges that Bradley persuaded the training division against scheduling her for Field Training Officer Assignments in retaliation for filing an official complaint against him. Beverly became a Field Training Officer ("FTO") in 2003. Pltf. 56.1 Resp. at ¶ 13. Field Training Officers train new recruits and receive compensation in addition to regular pay while they are doing so. Beverly Dep., p. 86-87. In 2004, Sergeant Roy Martin ("Martin") was the chief training officer and was responsible for scheduling field training for new recruits, including the FTO assignments. Pltf. 56.1 Resp. at ¶ 14.*fn4 Prior to June 2004, the training division scheduled Beverly for FTO training on a regular basis. Def. 56.1 Resp. at ¶ 33; Beverly Dep., p. 245. However, Beverly did not receive FTO assignments between March 2004 (a month and a half prior to Beverly's complaint to O'Leary) through March 2005 ( the month that Beverly transferred to court holding). Pltf. 56.1 Resp. at ¶ 46.

Martin needed to rely on an officer's availably in order to schedule her for FTO assignments. He would not have scheduled officers for FTO assignments during any month in which they had significant absences. Pltf. 56.1 Resp. at ¶¶ 13, 14, 16, 49. Because the FTO schedule was prepared ten weeks in advance, Martin would not have scheduled a person for at least ten weeks after the absences concluded due this 10-week lead-time period. Pltf. 56.1 Resp. at ¶¶ 14, 47. Between February and May 2004, Beverly took 47 days off from work under the Family Medical Leave Act ("FMLA"). Pltf. 56.1 Resp. at ¶ 15. In August, Beverly was absent 13 days due to sick and bereavement leave. Pltf. 56.1 Resp. at ¶ 48. Although Beverly's absences subsided after August 2004, Martin did not resume scheduling Beverly for FTO assignments because Beverly "fell off [his] radar". Pltf. 56.1 Resp. at ¶ 50; Martin Affidavit, ¶¶ 7,9, 10.

Beverly did not tell anyone, including Martin and Van Dyke, that she wanted to be scheduled for FTO assignments. Pltf. 56.1 Resp. at ¶¶ 51, 52. Beverly concedes that FTO opportunities were unpredictable and sporadic and that she is not capable of calculating how much money she earned as a result of being scheduled for FTO assignments prior to March 2004. Pltf. 56.1 Resp. at ¶ 18. Beverly admits that she did not lose a significant amount of money as a result of not getting FTO assignments.*fn5 Id. Beverly's request to transfer to court holding was granted in March 2005 and FTO assignments are not available in court holding because recruits are trained at the ADF. Pltf. 56.1 Resp. at ¶ 46.

Beverly next asserts that Bradley retaliated against her in June 2004 by refusing to switch her vacation schedule and by refusing to allow her to take a "comp day." Beverly's vacation was scheduled for the second week of July and she wished to switch it to the first week of July. Pltf. 56.1 Resp. at ¶ 20. In June 2004, Beverly learned that a vacation slot for the first week of July became available because the employee who had originally scheduled it was on leave. Pltf. 56.1 Resp. at ¶ 19. Bradley initially told Beverly that she could take the open slot. However, after she complained to O'Leary regarding Bradley's conduct, Bradley gave the open slot to another employee. Pltf. 56.1 Resp. at ¶ 19. Beverly did not lose any vacation time as a result; but rather, was denied the opportunity to change her scheduled vacation time as she pleased, which she described as "not a big deal." Id. Although Beverly could have filed a union grievance regarding her requested vacation time, she did not. Id. During the same month, Beverly asked Bradley whether she could take a "comp day" and Bradley denied her request. Pltf. 56.1 Resp. at ¶ 21. Beverly did not lose her "comp time" as a result; but rather, was forced to use a personal day. Pltf. 56.1 Resp. at ¶ 21.

Beverly further asserts that Bradley retaliated against her when he denied her request to change her scheduled days off from work. Correctional officers are allowed two consecutive days off from work per week. Pltf. 56.1 Resp. at ¶ 67. Officers' days off from work are varied to ensure that there is a full staff on duty each day. Pltf. 56.1 Resp. at ¶ 67. It is highly unusual for supervisors at the ADF to grant an officer's request to change his or her days off from work because it necessarily requires adjusting other officers' schedules to ensure a full staff. Pltf. 56.1 Resp. at ¶ 70. As a result, a correctional officer who wishes to change his or her scheduled days off from work must provide a reason to justify the change such as some kind of hardship. Pltf. 56.1 Resp. at ¶ 71. In July 2004, Beverly submitted a written request to Bradley asking to change her scheduled days off from work. Pltf. 56.1 Resp. at ¶ 65. Beverly requested the change because she wanted to avoid having those days fall on a scheduled holiday. Pltf. 56.1 Resp. at ¶ 66. Beverly concedes that absent a valid reason to change an officer's days off it is routine for supervisors to deny such requests and that scheduling days off to avoid having them fall on a holiday is not a valid reason. Pltf. 56.1 Resp. at ¶ 71. On July 6, 2004, Bradley denied Beverly's request to change her day's off from work. Pltf. 56.1 Resp. at ¶ 68. Again, although Beverly could have filed a union grievance regarding this issue, she did not. Pltf. 56.1 Resp. at ¶ 69.

Beverly believes that she received undesirable assignments from Bradley; namely, Bradley frequently assigned her to work with Larry Stein ("Stein") and Tressie Vance ("Vance") who "were always in trouble." Pltf. 56.1 Resp. at ¶¶ 57-58. Stein and Vance normally worked the midnight shift, but occasionally worked the day shift for overtime. Pltf. 56.1 Resp. at ¶ 59. The Daily Shift Rosters show the officers' assignments for the day. Pltf. 56.1 Resp. at ¶ 61. Watch commanders complete the forms each day on the date indicated. Id. Between June 21 and November 4, 2004 (when Bradley was transferred from the ADF), Beverly worked a total of 60 times and was assigned to work with either Stein or Vance a total of five times. Pltf. 56.1 Resp. at ¶ 62. On one of the five occasions in which Beverly was assigned to work with Stein and Vance, Bradley was not working and did not make the assignment. Pltf. 56.1 Resp. at ¶ 64. During the same time period, there were 21 correctional officers on the day shift on average at the ADF. Pltf. 56.1 Resp. at ¶ 63.

Finally, Beverly claims that after she reported Bradley's conduct, she became fearful of her safety and her daughter's safety. Def. 56.1 Resp. ¶ 25. On one occasion in 2004, Beverly saw Bradley driving eastbound on Route 6, a main road a few hundred yards from Beverly's home. Pltf. 56.1 Resp. at ¶ 85.*fn6 Beverly was stopped on her street in her car waiting to turn onto Route 6. Id. As he passed her, Beverly admits she did not see Bradley look at her nor does she know if he lives in her area. Pltf. 56.1 Resp. at ¶ 85; Beverly Dep., p. 325. On another occasion in 2004, Beverly saw Bradley diving on Interstate 80 ("I-80"). Pltf. 56.1 Resp. at ¶ 86. Beverly was on the entrance ramp merging onto I-80 and Bradley was on I-80 approaching the point where the entrance ramp merges onto the Interstate. Id. As Beverly merged onto I-80, Bradley passed her. Id. Beverly has "no idea" whether Bradley was on I-80 for the purpose of intimidating her as opposed to traveling for an independent purpose. Beverly Dep, p. 337. But after seeing him, she was so emotionally distraught that she left work that day and went home. Pltf. 56.1 Resp. ¶ 88.

Beverly told Julius Gambino, a union representative, that Bradley was intimidating her and Gambino subsequently told Van Dyke. Pltf. 56.1 Resp. at ¶ 88. Van Dyke called Beverly confirming that Gambino had reported Bradley's conduct. Id. Beverly did not tell Van Dyke or O'Leary directly because she believed that they "probably wouldn't have done anything about it." Beverly Dep., p. 330-331.

Twice since 2004, Bradley entered and immediately left the ADF weight room while Beverly was in the weight room exercising. Pltf. 56.1 Resp. at ΒΆ 87. Bradley did not return to the weight room on either occasion, but rather, sent other guards into ...


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