The opinion of the court was delivered by: Judge Joan H. Lefkow
Dalia Sacramento filed suit against the City of Chicago ("City") and Leonard Biszewski alleging sexual harassment (Count I), retaliation (Count II), and constructive discharge (Count III), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et. seq., as well as an Illinois state law claim for negligent retention (Count V) against the City.*fn1
Before the court is the City's motion for summary judgment on all four counts. For the following reasons, the City's motion [#83] is granted in part and denied in part.
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 fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Id. While 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), where a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on bare 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).
Northern District of Illinois Local Rule 56.1(a) requires the party seeking summary judgment to submit, among other things, a statement of material facts, which consists of short, numbered paragraphs and specific references within each paragraph to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. N.D. Ill. L.R. 56.1(a)(3). The non-moving party must then submit a concise response to the movant's statement of facts. Id. Material facts improperly denied by the non-moving party are deemed admitted by the court. Id.
Sacramento was employed by the City from July 16, 1990 until her resignation on February 9, 2007. Beginning on December 16, 1999, she served as a Supervisor of Investigations in the Department of Revenue ("Department"),*fn3 where she reported directly to Director of Security Nicholas Giannoules. Giannoules reported to Assistant Director Sherri Cianciarulo, who in turn reported to Deputy Director Ron Calicchio. As a Supervisor of Investigations, Sacramento was in charge of a rotating team of investigators and so was not always in charge of the same individuals. Biszewski, a seventy-one-year-old Revenue Investigator II, was an investigator who worked in Sacramento's department.
I. Conduct and Complaints Prior to August 14, 2006
Beginning in 2005, Biszewski routinely called Sacramento "bonita," meaning "pretty" or "attractive" in Spanish, which she found "very inappropriate" because she was a "supervisor." Defendant City of Chicago's Local Rule 56.1(a)(3) Statement of Uncontested Material Facts ¶ 26, hereinafter "DSF ¶ ___." Sacramento would reply, "[T]hat's not my name" and "don't call me that." DSF ¶ 26. She also informed Giannoules that she did not like Biszewski calling her "bonita" and spoke to Biszewski about it herself.
Around October 2005, Biszewski attempted to hug Sacramento. Sacramento objected, telling Biszewski, "Don't touch me. That's considered sexual harassment." DSF ¶ 25. Giannoules witnessed the incident. Although Biszewski did not touch Sacramento, Sacramento complained to Giannoules about the attempted hug and told him that "if anything happened again [she] would file a sexual harassment [charge] against Lenny [Biszewski]." DSF ¶ 29. Under the City's Policy on Sexual Harassment, reporting harassment to one's immediate supervisor was an appropriate method of registering a complaint. The supervisor was then responsible for reporting the complaint to the City's Sexual Harassment Office ("SHO").
Giannoules did not do anything about the attempted hugging incident. According to Sacramento, this was because Giannoules did not consider Biszewski's actions to constitute sexual harassment.
This was not the only time Biszewski hugged or attempted to hug Sacramento prior to August 14, 2006, though Sacramento could not give specific dates of these other occurrences. Sacramento considered these hugs and attempted hugs to be "non-sexual in nature." DSF ¶ 27. Biszewski similarly hugged Giannoules and another female co-worker, who did not find the hugs to be sexual or violent in nature. Giannoules also did not consider it sexual or violent when, on one occasion, Biszewski kissed him on his forehead and playfully slapped his face.
Biszewski also displayed other behavior that could be considered inappropriate. In 2000, Biszewski made an inappropriate comment to a female co-worker, Hollis Stewart, over the intercom radio, when Stewart asked Biszewski "what's up" and he answered "woody." DSF ¶ 23. Sacramento claims "everybody could hear this over the air" since "all the radios are on." DSF ¶ 23. Stewart reported the incident to Giannoules, who verbally reprimanded Biszewski. Additionally, sometime before 2006, Biszewski displayed a sexually explicit cardboard cut-out of a woman in a bikini in his cubicle, which Sacramento found inappropriate. Still, Sacramento did not complain to her supervisors or order Biszewski to remove it, although a former deputy director eventually instructed him to take it down.
II. Incident on August 14, 2006
On August 14, 2006, as Sacramento exited mandatory ethics training with co-worker Constantine Apostolos, Biszewski approached Sacramento and slapped her four times across her cheeks with the front and back of his hand. Sacramento described the act as a "three stooges" type of slap, DSF ¶ 35, and said that it stung. Biszewski then hugged Sacramento tightly in a bear hug, where his arms encircled her, his chest pressed tightly against her breasts, and she could not move her arms. Sacramento asked Biszewski to let her go, but he did not do so until "several seconds" later when Giannoules, who was nearby, instructed him to "let her go." DSF ¶ 36.
III. Sacramento's Formal Complaint and the City's Response
Although Sacramento did not sustain any physical injury from the contact or seek medical attention, she was upset about Biszewski's behavior and called Giannoules immediately after the incident to inform him that she wanted to "file charges" against Biszewski. DSF ¶ 38. After receiving Sacramento's call, Giannoules immediately contacted his supervisors, Cianciarulo and Calicchio, to inform them of Sacramento's request. Cianciarulo sent her request up the chain of command, and, within two weeks, the City initiated its investigation. SHO had Sacramento sign a formal complaint, interviewed Sacramento, Biszewski, and six other witnesses, including Giannoules and Apostolos, and worked with the City's Violence in the Workplace Coordinator, Robert Keller, to obtain written statements from the witnesses.
After reviewing the statements on December 20, 2006, SHO issued a report that found that Biszewski had violated the City's Policy on Sexual Harassment and Violence in the Workplace Policy and recommended that Biszewski serve a thirty-day unpaid suspension. Pursuant to the City's Personnel Rules and the applicable collective bargaining agreement, this was the most severe discipline the City could impose on Biszewski short of termination. Since Biszewski belonged to a union, however, the discipline could not be imposed until after a pre-disciplinary hearing and after Biszewski exhausted his contract rights. Biszewski eventually served his thirty-day suspension in February 2007.
In the months between the August 14, 2006 incident and Biszewski's thirty-day suspension, Sacramento had no further interaction with Biszewski. The Department instructed Biszewski not to use Sacramento as a direct or default supervisor or have any contact with her. In October 2006, however, a previously set rotation moved Sacramento and her team from the 12:00 p.m. to 8:00 p.m. afternoon shift to the 8:00 a.m. to 4:00 p.m. day shift, the same shift Biszewski worked. Investigators were normally required to come into the office at the beginning of the shift and leave to work in the field no more than an hour and a half after the shift started. The City claims investigators typically ended their days in the field and did not return to the office, although Sacramento disputes this and notes they sometimes spent entire days within the office. Even though Sacramento was not supervising Biszewski following the schedule change, she still requested that he be moved to the afternoon shift. The City did not fulfill Sacramento's request. Giannoules testified that Calicchio chose not ...