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Lujano v. Town of Cicero

March 5, 2010

JANIDET LUJANO, PLAINTIFF,
v.
TOWN OF CICERO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Janidet Lujano ("Lujano") sued the Town of Cicero ("Cicero," "the Town") and several of its officials -- the Town's President, Larry Dominick ("Dominick"), the Town's Superintendent of Police, Anthony Iniquez ("Iniquez"),*fn1 the Superintendent of the Town's Auxiliary Police Force, Moises Zayas ("Zayas"), and the Deputy Superintendent of the Town's Auxiliary Police Force, Serge Rocher ("Rocher") -- for violating her constitutional rights under 42 U.S.C. § 1983. Her complaint also asserts claims under Illinois law for intentional infliction of emotional distress ("IIED") and assault and battery. In brief, Lujano claims that for a period of roughly two years, she was sexually harassed by Dominick and Zayas, and that she was demoted in retaliation for refusing their advances. In addition, she alleges that she was also demoted on account of her gender and because of her refusal to engage in political activities for Dominick. Moreover, Lujano claims that she was subjected to even further retaliation after she came forward with these allegations.

Lujano's First Amended Complaint ("the complaint") consists of four counts: Count I, which is asserted against all of the defendants, alleges violation of Lujano's equal protection rights under § 1983; Count II, also asserted against all defendants, alleges violation of Lujano's first amendment rights under § 1983; Count III alleges intentional infliction of emotional distress against Dominick, Rocher, Zayas, and the Town; and Count IV alleges assault and battery against Dominick, Zayas, and the Town.

Iniquez and Rocher have moved for summary judgment with respect to Counts I through III of the complaint; the Town has moved for summary judgment on Counts III and IV. For the reasons discussed below, both motions are denied.

I. Background*fn2

Lujano was hired as an officer for the Town of Cicero's auxiliary police force in June 2005.*fn3 She was promoted to the rank of sergeant later that year, and remained on the force until August 2009, when her employment was terminated.*fn4 Lujano alleges that from 2005 until roughly the end of 2006, Dominick and Zayas subjected her to sexual harassment. In particular, she claims that Dominick and Zayas repeatedly made lewd comments to her about her breasts and other matters of a sexual nature. She also alleges that both Dominick and Zayas touched her inappropriately and made unwelcome sexual advances towards her.

On January 4, 2007, Lujano left work abruptly after finding that her menstrual period had unexpectedly begun and had visibly stained her clothing. Although she did not inform Rocher, or seek prior approval from him or any of her other superior officers, she claims that she put Auxiliary Officer Greg Becerra ("Becerra") in charge before departing. While she was away, a car accident occurred. The dispatcher attempted to contact Lujano during the incident but received no response. When Lujano returned to work on January 8, 2007, Rocher told her that she had been demoted and was no longer a sergeant.

A. Lujano's Demotion

According to Lujano, the January 4, 2007 incident merely served as a pretext for her demotion. She insists that Rocher had previously told her that it was unnecessary for her to obtain prior approval when she needed to leave work unexpectedly, and that she could simply put Officer Becerra in charge during her absence. Pl.'s L.R. 56.1 Stmt. ¶ 13. She maintains that this arrangement had been followed on several previous occasions and that it had never caused any problems. Id. The real reason for her demotion, she claims, was to retaliate against her for rebuffing Dominick's and Zayas's sexual advances. She also maintains that her demotion was a form of retaliation for her refusal to participate in political activities, such as attending precinct meetings, that Dominick requested after she had been promoted to the rank of sergeant. Still further, she alleges that she was demoted on account of her gender, and that her position was reduced so that a male officer, Louis Vasquez, could be made a sergeant.

In support of her claim that the January 4, 2007 incident was pretextual, Lujano cites, among other things, a note written by Officer Becerra on January 9, 2007, which largely corroborates her side of the story. In the note, Becerra states that he "was told to take charge" by Lujano after she left as "[he] normally d[id] in her absence." Pl.'s Rule 56.1 Stmt. ¶ 17. Moreover, it is undisputed that when Zayas learned of what Becerra had written, he became upset, yelled at Becerra, and instructed him to rewrite the note to state it was "unknown" whether Becerra had been put in charge after Lujano left work. Pl.'s Rule 56.1 Stmt. ¶ 18.*fn5

For their part, the defendants deny that Rocher ever told Lujano that she could leave work without first getting approval from a superior officer. While they nevertheless claim that the rules and regulations clearly require officers to obtain prior approval before leaving their posts, they fail to cite any particular rule or provision in support of their position. The defendants also maintain that Lujano had been warned on several previous occasions about showing up late for work or for not showing at all. Nevertheless, it is undisputed that Lujano's personnel file contains no evidence of any previous reprimands or warnings. Iniquez & Rocher Resp. to Pl.'s L.R. 56.1 Stmt. ¶ 15. The defendants also concede that the January 4, 2007 incident was the first in which Lujano had ever abandoned her post. Iniquez & Rocher Resp. to Pl's L.R. 56.1 Stmt. ¶ 15.

B. March Meetings Between Lujano and Iniquez

On March 1, 2007, about three months after her demotion, Lujano sent a memo to Iniquez in which she alleged for the first time that she had been sexually harassed by Dominick and Zayas. In the memo, she also stated that she felt she had been demoted for political reasons and because of her gender. Later in the month, Lujano met with Iniquez to discuss her allegations. During one such meeting, on March 20, 2007, she claims that Iniquez "started screaming at her and threatened to fire her and stated that he could fire her whenever he wanted, without any explanation." Pl.'s L.R. 56.1 Stmt. ¶ 27. He also warned Lujano not to try to intimidate him in an attempt to get her sergeant stripes back. Id.

Lujano was ultimately reinstated as a sergeant on March 19, 2007. She claims, however, that the reinstatement was in name only and that she began to suffer even more severe retaliation in subsequent weeks and months. Indeed, she contends that the defendants' retaliation continued even after she filed the instant suit in August 2007. In what follows, I recount some of the main incidents on which Lujano's claims of retaliation are based.

C. The September 15, 2007 Reprimand

On September 15, 2007, Lujano was on duty in a squad car with Becerra. Becerra stopped to speak with a personal acquaintance. Lujano claims that she saw Fran Reitz, Cicero's Town Collector, stationed nearby in her vehicle, watching her and Becerra. According to Lujano, Reitz "passed by them, looked at them and then drove away." Pl.'s L.R. 56.1 Stmt. ¶ 27. Later that day, Lujano and Becerra were written up for failing to maintain contact with dispatch.

The parties dispute precisely how long Becerra spent talking with his acquaintance. They also dispute whether Lujano's and Becerra's conduct indeed constituted a violation of departmental rules and regulation. The defendants assert that "[t]here is a rule requiring officers to maintain contact with dispatch for officer safety, and had they followed the appropriate procedure, Lujano and Becerra would have been obligated to call dispatch." Iniquez & Rocher Resp. to Pl.'s L.R. 56.1 Stmt. ¶ 47. Once again, however, they do not cite the specific rule or regulation in question.*fn6 Lujano claims that she and Becerra were never really out of contact with dispatch because they remained in their vehicle during the stop and were able to receive any calls that might have been directed to them.

In any event, Lujano claims, it was not unusual for officers to be out of contact with dispatch for limited periods of time. Lujano maintains that the rule was enforced only in her case, and that other officers were simply allowed to disregard it. She claims:

It was common for officers to be out of contact with dispatch at times, but the rule that Lujano had to radio dispatch, even if still in her vehicle and available, applied only to Lujano. Other officers talked to people on the street and did not call dispatch. The whereabouts of Sgt. Jesus Zayas, Jr. was [sic] frequently unknown; on "many, many" occasions, Lujano observed Sgt. Zayas, Jr.'s car at the Old Country Buffet or at the substation and he had not called himself in.

Lujano L.R. 56.1 Resp. ¶ 40 (citations omitted).

Later that day, Lujano met with Iniquez to discuss the write-up. During the meeting, she complained to him that she felt the reprimand was retaliatory.

D. Lujano's Meetings with Iniquez on September 20 and 27, 2007

On September 19, 2007, Lujano experienced what she describes as an anxiety attack while at work: she was taken to a hospital emergency room via ambulance, complaining that her heart was racing and that she was unable to breathe. The next day, Iniquez called Lujano into his office. She again complained to him that she was being subjected to retaliation. In response, she claims that Iniquez "berated" her. Pl.'s L.R. 56.1 Stmt. ¶ 49.

On September 27, 2007, Lujano met again with Iniquez. Iniquez had arranged for another female officer, Sergeant Lori Lelis, to attend the meeting as a witness. According to both Lujano and Becerra, when Lujano told Iniquez that she wanted Beccera to attend the meeting as her own witness, Iniquez responded by shouting, "You don't need a fucking witness," along with other profanities, and ordered Becerra to leave. Pl.'s L.R. 56.1 Stmt. ¶ 49. Iniquez admits that he ordered Becerra to leave. He claims that he did so, however, because Becerra was a subordinate officer and Iniquez felt that it would have been inappropriate to discuss Lujano's allegations in front of him. Iniquez denies swearing at Lujano. Iniquez & Rocher Resp. to Pl.'s L.R. 56.1 Stmt. ¶ 49.

Later that day, Rocher reprimanded Lujano for having taken a sick day on September 23, 2007 without providing him with a doctor's note. Lujano maintains that her absence was excused, and that other officers were not required to submit doctors' notes when taking days off due to illness. Pl.'s L.R. 56.1 Stmt. ¶ 50. It is undisputed that Iniquez later determined that Lujano had not committed an infraction and rescinded Rocher's write-up.

E. October 9, 2007: Rocher Disciplines Lujano for Being Off-Post and Out of Uniform.

On October 9, 2007, Lujano and Becerra were working at Sportsman's Park Racetrack. According to Lujano, they had been assigned to posts at opposite ends of a vacant building inaccessible to the public. During the shift, she and Becerra left their posts to talk with one another. Rocher later arrived on the scene and wrote Lujano up for being off-post. He also wrote her up for being out of uniform, on the ground that she was wearing a civilian rain coat over her uniform. According to the defendants, Rocher had been contacted by Fran Reitz and another Town official, who complained that they had seen two auxiliary officers talking on the job, and that one of the officers was out of uniform. Iniquez & Rocher Resp. to Pl.'s L.R. 51.6 Stmt. ¶ 51.

Here, again, Lujano claims that she was unfairly disciplined for conduct frequently engaged in by other officers without any punishment. She alleges that other officers assigned to Sportsman's Park would frequently talk with one another, sometimes sitting in lawn chairs for their entire shifts, without any reprimand. Pl.'s L.R. 56.1 Stmt. ¶ 53. While Rocher testified that other officers were reprimanded for talking during their shifts at Sportsman's Park, Iniquez & Rocher Resp. to Pl.'s L.R. 51.6 Stmt. ¶ 53, Lujano correctly points out that there is no evidence to this effect in either of the other officers' personnel files. Pl.'s Resp. to Iniquez & Rocher L.R. 56.1 Stmt. ¶ 48. She also notes that although both she and Becerra were off-post at the time, she was reprimanded and Becerra was not.

Lujano further denies that she was out of uniform on the date in question. She contends that she was in compliance with the relevant regulations because, while her stripes were covered by her coat, her badge remained visible. Pl.'s Resp. to Iniquez & Rocher L.R. 56.1 Stmt. ΒΆ 51. Moreover, Lujano claims that she "was told that the officers could wear jackets if they were in their personal vehicle and not in a squad car, which was the situation here" and that "[e]very other officer wears ...


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