The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Monday, 28 February, 2011 04:01:23 PM
Clerk, U.S. District Court, ILCD
This matter comes before the Court on Defendants Larry Trent, Harold "Skip" Nelson, Lance Adams, Rich Woods and Leonard Stallworth's Motion for Summary Judgment (d/e 21). For the reasons stated below, the Motion for Summary Judgment is ALLOWED.
FACTS*fn1 THE BARBIE DOLL E-MAIL
On February 4, 2008, Plaintiff Flynn Hanners ("Hanners"), a master-sergeant with the Illinois State Police ("ISP"), sent an e-mail to 16 ISP employees using the ISP's e-mail system and an ISP computer. The e-mail was entitled "Mattel recently announced the release of limited-edition Barbie Dolls for the Springfield market".
Hanners' e-mail included pictures of fictitious Barbie Dolls (the "Barbies") with various accessories and descriptions. The Barbie Dolls included a "Chatham Barbie," and stated that the doll: was sold only at the Gables*fn2 ; was available with or without a tummy tuck and fact lift; and that workaholic Ken was sold only in conjunction with the augmented version. The e-mail referred to a "Rochester Barbie," who was depicted as a homemaker who gets lost easily and has no full-time occupation. There was also an "East Side Barbie," "recently paroled, [who] comes with a 9mm handgun, a Ray Lewis knife, a Chevy with dark tinted windows, and a Meth Lab kit. Th[e] model is only available after dark and must be paid for in cash (preferably small untraceable bills), unless you are a cop, then we don't know what you are talking about."
Hanners' e-mail also included a "Panther Creek Barbie", described as a "yuppie" and comes with a BMW or Hummer. According to the e-mail, "[t]his Barbie has her own Starbucks cup, credit card and country club membership . . . available with this model are Shallow Ken and Private School Skipper." The e-mail stated that the "Panther Creek Barbie" model comes with credit card debt, car loans and three mortgages. Additionally, the e-mail referred to a "Riverton Barbie" who was depicted in front of a pick up truck, with a confederate flag and six pack of beer nearby. "Riverton Barbie" was said to wear Wrangler jeans "two sizes too small, a NASCAR t-shirt, and Tweety Bird tattoo on her shoulder." "Riverton Barbie" was said to be able to spit over 5 feet and "kick mullet-haired Ken's butt when she is drunk." Next, there was "Lake Area Barbie". She was said to be "collagen injected, botoxed, rhinoplastied," and wearing a leopard print outfit. She was purportedly available with a Percocet prescription. She had a live-in partner, Dr. Ken, and was available with a new prescription pad and "Skipper on the side."
"Pawnee Barbie" was depicted in the e-mail standing in front of a small trailer with one high heel on and one off and was described as "tobacco-chewing" and "brassy-haired". She was said to have "a pair of her own high-heeled sandals with one broken heel from the time she chased beer-gutted Ken out of Divernon Barbie's house." "Pawnee Barbie" allegedly came with "low-rise acid-washed jeans, fake fingernails, and a see-through halter-top [and was] [a]lso available with a mobile home."
There was also a "Downtown Barbie" depicted as two dolls; one wearing a dress and long hair and one wearing less feminine clothing with her hair back. "Downtown Barbie" was described as having "long straight brown hair, arch-less feet, hairy armpits, no makeup, and Birkenstocks with white socks." "Downtown Barbie" did "not want or need a Ken doll, but if you purchase two Downtown Barbies and the optional Subaru wagon, you get a rainbow flag bumper sticker for free." Additionally, there was a "Leland Grove Barbie" characterized, in part, as coming with an old-money Springfield pedigree and small-mindedness. Lastly, Hanners' e-mail depicted a "South of Downtown Barbie/Ken" as a versatile doll that "can be easily converted from Barbie to Ken by simply adding or subtracting the multiple snap-on parts. He/She comes with his/her own bail bond card and criminal record for prostitution and possession. He/She had been banned from Walgreen's and CVS for attempting to purchase more than two boxes of ephedrine-containing drugs in one day.
Hanners' e-mail was received by ISP Special Agent Stacy Connor ("Connor")*fn3 on February 4, 2008, and she forwarded it to two other ISP employees. Connor also forwarded the e-mail to ISP Sergeant Brenda Burton ("Burton"). Though Burton was not offended by the e-mail, she felt she needed to bring it to the attention of her supervisor. Burton thought the e-mail might be a set-up to see how she would react as a supervisor who received correspondence of this nature on company equipment. Burton wrote a note to her supervisor, Master Sergeant John Lewis and attached a copy of the e-mail. Burton noted the e-mail was probably forwarded to her by mistake.
Hanners' e-mail was also received by Commander Rich Woods ("Woods"). Woods reviewed the e-mail and found it to be racist and sexist. He wanted to determine whether the e-mail had been sent on the ISP's e-mail system and from and ISP computer. Woods, thus, shared the e-mail with Captain Gordon Fidler ("Fidler").*fn4 Woods indicated that the e-mail should be investigated. Woods said there should be some further inquiries to determine whether the e-mail originated from Hanners.
ISP's Division of Internal Investigation ("DII") was notified about the e-mail on April 3, 2008, and the incident was assigned Case #0870022. Captain Scott Rice, ISP's Zone 7 Commander, completed a Complaint Against Department Member ("CADM") form against Connor on April 21, 2008, in relation to the e-mail. The case was referred to ISP's Equal Employment Office ("EEO") on May 2, 2008.
The April 3, 2008, CADM stated that on March 27, 2008, Fidler was given copies of an e-mail sent from Hanners on his ISP-issued computer to several recipients within the ISP. The CADM also stated that:
The e-mail depicts several Barbie dolls, each of which were supposed to represent various towns around Springfield. Each description of the doll based upon what some might suggest is a stereotype for that particular community. Commander Woods directed me to contact DII Acting Southern Commander Gerry Jenkins to determine the appropriate course of action. On 3/27/08, I met with A/Commander Jenkins and provided him with the material I had been given. He advised me DII would open and investigate this issue.
A File Initiation Report was also filled out regarding Hanners and the e-mail. DII referred the e-mail incident to Fidler. Fidler asked Hanners' supervisor, Lt. Sherry Anderson-Martin ("Anderson-Martin"), to investigate Hanners pursuant to the DII referral. Anderson-Martin interviewed Burton and Connor (two recipients of Hanners' e-mail). She also interviewed Hanners and Hanners admitted sending the e-mail to Connor. Anderson-Martin wrote reports on the three interviews, made a recommendation and discussed it with Fidler. The investigation and recommendation was subsequently withdrawn from Fidler and Anderson-Martin and given back to DII.
Although Anderson-Martin did not speak with anyone from the EEO in the course of her investigation, at some point the EEO became involved in the investigation. Master Sergeant Robert Sgambelluri was assigned to conduct the investigation.
Suzanne Bond was the Chief of the EEO. Her office was responsible for overseeing internal EEO training, including employment law training and cultural diversity training. The EEO had an internal complaint process for EEO claims that included options for investigation and mediation. If an employee made a complaint, the employee would sign an EEO intake questionnaire and provide a narrative regarding what allegedly happened and explain why the actions constituted discrimination, harassment or retaliation.
In addition to being involved in the investigation of Hanners' e-mail, the EEO was investigating an ISP District Commander who sent all of the other District Commanders an e-mail making fun of women. The e-mail contained a cartoon depicting a man and a woman in a car. The man had a traditional seat belt and the woman had a seatbelt that went across her lap, shoulder and mouth. Another e-mail under investigation by the EEO involved a situation where two individuals sent a link to a video concerning the appropriate use of the "F-word" (hereinafter the "'F-Word' video").
On May 28, 2008, prior to the completion of the Hanners' investigation, Bond e-mailed ISP Director Harold Nelson ("Nelson") and copied ISP Assistant Deputy Director Lance Adams ("Adams") regarding all of the e-mail investigations/issues, outlining the current investigations and giving them her opinion of possible charges and course of action. Bond indicated she had discussed her opinions with ISP legal counsel John Hosteny and Jessica Trame. Adams was copied because individuals other than Hanners were under his command.
During the Hanners' investigation, the EEO surveyed all recipients of his e-mail. No one said they were offended by the e-mail and no one wanted to make an EEO complaint.
Sgambelluri interviewed Hanners on August 18, 2008. Hanners initially stated that he believed the e-mail was not improper because he had heard the content on the radio and if the FCC allowed the content, it was not inappropriate for the workplace. However, at the time of his interview, Hanners acknowledged that sending the e-mail was an improper use of ISP e-mail. Hanners also acknowledged receiving training on EEO policies. Sgambelluri concluded that "while the contents of the e-mail were related to race, sexual orientation, parental status, pregnancy, family responsibilities, and the characteristics of gender, no person receiving the e-mail reported being offended by its contents," and did not state it interfered with their work performance or created a "hostile, abusive or offensive work environment." Therefore, Sgambelluri concluded the investigation did not substantiate a charge of hostile work environment as defined in ISP policy.
However, Sgambelluri did conclude that the e-mail "contained derogatory references to women, African Americans, and other categories of people, and presented negative and demeaning stereotypes of these groups." Thus, Sgambelluri determined that Hanners' transmission of the e-mail to others via ISP equipment and/or within the ISP workplace, was without a business reason and was contrary to ISP Policy PER-009. ISP PER-009 stated that ISP "will ensure managers and supervisors recognize their responsibility for carrying out the spirit and intent of the EEO Program."
Sgambelluri determined that the investigation supported charging Hanners with violating Rules of Conduct-002, III.A.64: Violating PER-009, Equal Employment Opportunity, Level 4 Misconduct; and ROC-002, III.A.38: Misuse of ISP equipment, Level 1 Misconduct.
Bond agreed that the e-mail violated ISP policy. She recommended to ISP Director Larry Trent ("Trent") that Hanners be charged with violating Rules of Conduct (ROC)-002, III.38, "Officers will utilize Department equipment only for its intended purpose, in accordance with established Department procedures and will not abuse or damage Department equipment. Officers will use reasonable care to avoid loss of Department equipment. All Department equipment issued to officers will be maintained in proper order (Level I on the Matrix); and violation of ROC-002, III.A.64: Officers will not engage in conduct that is in violation of the policies and procedures established in directives PER-009, 'Equal Employment Opportunity,' PER-032, 'Discrimination and Harassment,' or PER-033, 'Sexual Harassment,' (Level 4 on Matrix)."
Bond's recommendation to Trent included a citation to PER-009,
III.6.C.: "Colonels and their Supervisors and Managers will recognize their explicit responsibility for carrying out the spirit, as well as the intent, of the EEO Program, including but not limited to the EEO Plan, and actively work to advance the program among the employees they supervise." Bond's recommendation to Trent also included recommendations for discipline for Special Agent Kinter (nee Connor) and ...