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Clemmer v. Office of the Chief Judge of Circuit Court of Cook County

December 2, 2008

REGINA CLEMMER, PLAINTIFF,
v.
OFFICE OF THE CHIEF JUDGE OF CIRCUIT COURT OF COOK COUNTY AND STATE OF ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM ORDER AND OPINION

Defendants, the Office of the Chief Judge of the Circuit Court of Cook County and the State of Illinois, move for summary judgment with respect to Plaintiff Regina Clemmer's remaining count of retaliation. Clemmer also moves for summary judgment regarding a single allegation of retaliation relating to her employer's failure to investigate her underlying (but previously dismissed) sex discrimination claim. Clemmer alleges that the Defendants, through the actions of a Cook County Circuit Court judge and Clemmer's supervisors, engaged in sex discrimination and retaliation against her in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.

SUMMARY OF THE FACTS*fn1

Clemmer has worked as an official court reporter for the Circuit Court of Cook County since 1996. (Pl.'s SOF, Ex. A, Clemmer Aff. ¶ 2.) Although the identity of her official employer has changed several times since she started working for the Circuit Court, she has at all times been paid by the state of Illinois, and she is currently employed by the Office of the Chief Judge of the Circuit Court of Cook County ("Office of Chief Judge"). (Pl.'s SOF ¶ 1; Def.'s Resp. to Pl.'s SOF ¶ 1; Def.'s SOF, Ex. A, Lawless Aff. ¶¶ 13-14.) Clemmer worked in the First Municipal District-South Division until her transfer to the Criminal Court Division in October 2007. (Pl.'s SOF, Ex. A, Clemmer Aff. ¶2.) Although Clemmer's official work hours are from 8:30 a.m. to 4:30 p.m., there is a dispute as to whether all court reporters were generally required to work until 4:30 p.m. (Pl.'s Resp. to Def.'s SOF ¶ 5.) Clemmer is paid a base salary, which does not change even if she is allowed to leave before 4:30 p.m., and is also paid by private attorneys and state and local government agencies for the transcripts that she produces. (Def.'s SOF, Ex. C, Clemmer's 2006 Dep. at 27-28, 118-19.) Clemmer has had various supervisors since 2001. At all times relevant to this motion, James Lawless was the Assistant Administrator in the Office of the Official Court Reporters ("Office") and Clemmer's second-level superior. (CSOF*fn2 ¶ 20.) From 2001-2003, her direct supervisor was Lynn Mangan. (Id. at ¶ 19.) After Mangan's retirement, Lois Damitz served as Clemmer's supervisor until January 2004, when Damitz retired. (See id. at ¶¶ 18, 24.) From that time until December 2005, Lawless filled in as the court reporter supervisor, and maintained his duties as the Assistant Administrator. (Id. at 20.) In January 2006, Nanette Comeaux-Brookins took over as the supervisor. (Id. at 21.)

In January 2002, Clemmer complained to Mangan about alleged harassing conduct at the hands of Judge Iosco, a judge in the Circuit Court's domestic violence division under whom Clemmer sometimes worked. (Pl.'s SOF ¶¶ 8-12.) Clemmer subsequently filed a charged against Judge Iosco with the Judicial Inquiry Board ("JIB") in June 2002. (Pl.'s SOF ¶ 15; Def.'s SOF, Ex. C, Clemmer's 2006 Dep. at 12-15.) In August 2002, she also filed a formal complaint with the EEOC. (Pl.'s SOF ¶ 18; CSOF ¶ 112). In November 2002, the JIB found that Clemmer's charges were unfounded and informed her that it would not file a formal complaint against Judge Iosco on her behalf. (Def.'s SOF, Ex. C, Clemmer's 2006 Dep. at 91.) Clemmer filed this lawsuit in June 2006, alleging sexual harassment and retaliation in violation of Title VII. In March 2007, we granted in part and denied in part Defendant's motion for summary judgment; we granted summary judgment for Defendants on Clemmer's sexual harassment claim and on most of her allegations regarding her retaliation claim. Clemmer v. Office of the Chief Judge of Circuit Court of Cook County, No. 06 C 3361, 2007 WL 1390618, at *5-7 (N.D. Ill. May 9, 2007). Specifically, we granted summary judgment for the following allegations: "Clemmer's assignment to the Maywood courthouse; Lawless' admonition that she could only work at 26th and California if she agreed to work there permanently; Brookins' occasion that she overcharged for transcripts -- which did not result in discipline; and her dispute with Brookins and Lawless regarding her supervisors' refusal to let her leave work early."*fn3 Id.

Although Clemmer alleges that all of her supervisors, including Mangan, Damitz, Comeaux-Brookins and Lawless, knew of her sexual harassment complaint (Pl.'s SOF ¶ 8, 9, Ex. A, Clemmer's Aff. ¶ 42; Pl.'s Resp. to Def's SOF ¶ 79), there is a dispute regarding the scope of Comeaux-Brookins' knowledge (Def.'s SOF ¶79). Clemmer acknowledges that she "does not have specific evidence" that Comeaux-Brookins was aware of the JIB complaint or the EEOC filing (Pl.'s Resp. to Def.'s SOF ¶ 79), but states in her sworn affidavit that she had conversations with Comeaux-Brookins regarding her sexual harassment complaint and that she specifically "told [Comeaux-Brookins] of [her] intention to retain counsel and take legal action" (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶42).

Clemmer alleges various acts of retaliation beginning in 2002 after she filed complaints with The JIB and the EEOC, and escalating after the EEOC mailed a copy of her right-to-sue letter to her employer in 2006. She does not allege that either Mangan or Damitz, her supervisors between 2002 and 2004, retaliated against her. (Pl.'s Resp. to Def.'s SOF ¶¶ 30, 78.) She alleges, however, that Lawless committed several retaliatory acts as her second-level supervisor and acting supervisor. Clemmer alleges that Lawless retaliated against her in the following ways: increasing her to be assigned ("TBA") assignments;*fn4 failing to schedule her for her preferred schedule; increasing her Monday and Friday preliminary hearing room assignments, but decreasing her Tuesday, Wednesday, and Thursday assignments; giving her 24 hours to decide whether she wanted to permanently transfer to the Criminal Division; and presenting her with an ultimatum regarding that transfer. (Pl.'s Resp. to Def.'s SOF ¶¶ 48-49.) Clemmer also asserts that Comeaux-Brookins retaliated against her by: assigning her to undesirable courtrooms; denying her requested vacation time twice, once to attend Court; forcing her to charge a lower rate for a transcript; treating her in a rude manner; and denying her transfer request. (Id.) She additionally alleges that Comeaux-Brookins' conduct constituted retaliation when she: interfered with her transcript orders and charges; required her to stay after her court adjourned, while other court reporters were allowed to leave; failed to inquire about her preferred schedule; and manipulated with her schedule. (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶ 11.) The rest of this section explores the most relevant of these allegations in more detail.

I. Allegations Regarding Scheduling

Because many of Clemmer's allegations revolve around her schedule, we describe the various types of schedules. Clemmer was a "high producer," meaning that she could produce a high volume of transcripts. (Def.'s SOF ¶ 33; Pl.'s SOF, Ex. A, Clemmer's Aff. ¶ 15.) Because the preliminary hearing rooms were particularly busy on Tuesdays, Wednesdays, and Thursdays, assignments to preliminary hearing rooms on those days gave reporters the opportunity to earn more income from transcript orders, and "high producers" preferred to work such courtrooms on those days. (Def.'s SOF ¶ 32; Pl.'s SOF, Ex. A, Clemmer's Aff. ¶ 15.) Until 2005, there were only three preliminary hearing courtrooms; an additional preliminary hearing courtroom was added in October 2005. (Def.'s SOF ¶ 8.) The South Municipal Division underwent many other changes between 2003 and 2005. For example, in July 2003, the Division stopped staffing the two traffic courtrooms; in January 2005, its staffing responsibility over Housing Courtroom 1101 ended; and, five probate courtrooms were removed from the Division in 2005. (Id. ¶ 3.) Additionally, in October 2005, one Domestic Violence Courtroom was closed. (Id. ¶ 5.) In October 2005, two courtrooms that handled orders of protection were added to the Division. (Id. ¶ 6.) In addition to these courtrooms, court reporters in the South Municipal Division could be assigned outside the division, depending on needs of other divisions. (Def.'s SOF, Ex. A, Lawless' Aff. ¶ 29.)

High producers, like Clemmer, preferred certain courtrooms over others. In addition to the Tuesday-Thursday preference for preliminary hearing courtrooms, Clemmer preferred placement in other courtrooms that were also likely to result in high transcript orders. (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶ 13.) Clemmer claims, however, that Lawless and ComeauxBrookins did not equitably rotate court reporters throughout these preferred courtrooms, but instead used the assignments to "punish" certain "disfavored" reporters. (Pl.'s SOF ¶¶ 25-26.) To support this claim, she presents her own affidavit and affidavits from Rosita Carter, Larissa Frank, and Diane Washington, other court reporters in her division. (See Pl.'s SOF, exs. B-D.) Clemmer also alleges that Lawless retaliated against her by giving her more TBA assignments and other assignments that "requir[ed] her to sit in an office and do no work." (Pl.'s Consol. Br. in Opp. to Def.'s MSJ and Mot. for Partial SJ at 5 [hereinafter Pl.'s Consol. Br.]; Pl.'s SOF, Ex. A, Clemmer's Aff. ¶¶ 23, 26, 29.) Clemmer further argues that although Comeaux-Brookins did not assign her any TBA assignments, she assigned her to courtrooms in which there was no work, which, according to her, were the equivalent of TBA assignments. (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶¶ 25, 29.)

To support her claim that she was assigned more TBA and fewer preliminary hearing assignments than other reporters, Clemmer cites the daily and weekly assignment schedules. (See Pl.'s SOF, exs. A-4 -- A-6.) Clemmer presents summaries of the actual assignments and assignments worked after any switching. (See id. A-7.) Defendants have also provided summaries. (See Def.'s SOF ¶¶ 38-42, exs. A-2, A-4, A-7) Clemmer, however, argues that Defendants' summaries are made up of the assignments actually worked, after voluntarily trading with other court reporters, and not the actual assignments scheduled by Lawless and Comeaux-Brookins. (Pl.'s Resp. to Def.'s SOF ¶¶ 38-42.) Because we must interpret the facts in favor of the non-movant, who on this issue is Clemmer, we will look to Clemmer's exhibits regarding her assignments, to the extent possible.

II. Allegations Regarding Transfer to Criminal Division

Around August 2005, and in response to Clemmer's request for more high transcript-producing courtrooms, Lawless offered to send Clemmer to the Criminal Division where she would get the opportunity to make more income through transcript requests. (Def.'s SOF ¶ 72.) With her agreement, Lawless scheduled her to that Division 29 times. (Def.'s SOF ¶ 43.) Clemmer alleges that, in an attempt to get her to leave his Division, Lawless gave Clemmer 24 hours to decide whether she wanted to be transferred to the Criminal Division permanently. (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶ 74.) Lawless admits that he gave Clemmer the option to transfer, but denies that he demanded an answer within 24 hours. (Def.'s SOF ¶ 43.) Clemmer alleges that this was retaliatory because no other employee was given such an ultimatum.

Clemmer also claims that Lawless retaliated against her in 2007 when she applied for a transfer to the Criminal Division. Although Clemmer denied the option to transfer to the Criminal Division in 2005, in June 2007, she requested a transfer to that Division. (Id. ¶ 66.) Although there is a dispute as to how many positions were open at the time (see Pl.'s Resp. to Def.'s SOF ¶ 66), another court reporter, Grace Brennan was given the transfer. (Def.'s SOF ¶ 67.) Defendants state that this decision was based on seniority. (Id.; but see Pl.'s Resp. to Def.'s SOF ¶ 67.) However, Brennan later withdrew her transfer request, placing Clemmer next in line for the transfer. (Def.'s SOF ¶ 67.) Clemmer had to wait until the position was reposted, which occurred in November 2007; thereafter she was transferred to the Criminal Division. (Id. ¶ 68.) Clemmer alleges that there was more than one position open in the Criminal Division, and that her employer's refusal to transfer her after her initial request was retaliation, not a decision based on seniority. (Pl.'s Consol. Br. at 6; Pl.'s SOF, Ex. A, Clemmer's Aff. ¶¶ 77-81.)

III. Allegations Regarding the Denial of Vacation Requests and Sick and Personal Days

Clemmer claims that Comeaux-Brookins retaliated against her on several instances when she was denied vacation requests and sick and personal days. In October 2006, Clemmer requested four weeks of vacation for the 2007 year. (See Def.'s SOF ¶¶ 50-51, Ex. 2.) She was ultimately granted two of these weeks, a week in May and a week at the end of August. (Id. ¶ 50.) Clemmer still wanted a third week of vacation, for a family vacation, sometime between June and August. (Id. ¶ 54.) Because other court reporters with more seniority had already requested time off during that period, Comeaux-Brookins experienced difficulty scheduling this vacation. (Id. ¶¶ 51-54.) Clemmer asked Comeaux-Brookins to show her a list of available weeks. (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶¶ 45-46.) Comeaux-Brookins refused, explaining that she did not have such a list. Clemmer claims, however, that she saw Comeaux-Brookins use this list at a prior time. (Id.) Clemmer was eventually given the week of August 6, 2007 off, after Comeaux-Brookins requested another that court reporter cancel a second consecutive week of vacation.*fn5 (Def.'s SOF ¶ 56.) Before Comeaux-Brookins notified Clemmer that she would be given the week of August 6, 2007, Clemmer also called Marilyn Filishio, Lawless's supervisor, in an attempt to schedule her vacation. (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶¶ 47-48.) Although Clemmer claims that her call to Filishio resulted in approval of her vacation request (id. ¶¶ 47-49), Defendants state that the week became available only after Comeaux-Brookins cancelled the other reporter's vacation. (Def.'s SOF ¶ 56.) Clemmer also testified that Comeaux-Brookins called her six times in a single day after she spoke with Filishio, demanding that in order to grant her vacation request, Clemmer had to fax another copy of the request, which Clemmer did the next day. (Pl.'s SOF, Ex. A, Clemmer's Aff. ¶ 49.)

In July 2007, when Clemmer was temporarily assigned to the Criminal Division, Clemmer wanted to use a vacation day to attend Court in this matter. (Def.'s SOF ¶¶ 57-60.) Clemmer sent a faxed request to Comeaux-Brookins, but she never received this request. (Id. ¶ 58.) Defendants state that by the time Comeaux-Brookins received Clemmer's second request, the schedules were already posted. She therefore denied that request. (Id. ¶59.) Clemmer contends that the schedule was not posted because they typically were not posted until Friday afternoon, and she sent her request on Friday at 11:30 a.m. (Pl.'s Resp. to Def.'s SOF ¶ 59; Pl.'s SOF, Ex. A, Clemmer's Aff. ¶50.) Even assuming that Clemmer is correct that the schedules were not posted at the Criminal Division, there is no dispute that vacation requests must be submitted before the schedule is posted in the South Municipal Division, not the Criminal Division. (See Def.'s SOF ¶ 59.) Clemmer ultimately was able to take the day off to attend Court by using a sick day.*fn6 (Id.)

Clemmer also alleges that Comeaux-Brookins retaliated against her by denying her use of personal days. Clemmer requested personal days on the days prior to and subsequent to the Thanksgiving and Christmas holidays in 2007. (Id. ¶ 65.) Clemmer received those days off in 2006, but she called in sick on the day before her scheduled personal day before Thanksgiving, and on the day after her scheduled personal day after Christmas.*fn7 (Id. ¶ 64.) Comeaux-Brookins states that because the Office was understaffed in 2006 around the holidays, she denied such personal day requests to people who called in sick before a scheduled personal day near a holiday. (Def.'s SOF ¶¶ 62, 63, 65, Ex. B ¶¶ 97-99.) Therefore, Comeaux-Brookins claims that this policy decision drove her denial of Clemmer's personal day requests. (Id.)

As discussed above, Clemmer asserts other allegations of retaliation. To the extent that more facts are needed regarding those assertions, the ...


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