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Marlis O'leary v. Paul Kaupas

January 4, 2012

MARLIS O'LEARY, PLAINTIFF,
v.
PAUL KAUPAS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This case comes before the Court on two motions. Plaintiff Marlis O'Leary ("Plaintiff") moves for partial summary judgment against Defendant Paul Kaupas (the "Sheriff" or "Sheriff Kaupas") pursuant to Federal Rule of Civil Procedure 56. Defendants Sheriff Kaupas, Will County Sheriff ("Sheriff's Office"), Lieutenant Marty Shifflet ("Lt. Shifflet"), Sergeant Zaragoza ("Sgt. Zaragoza"), Sergeant Chester ("Sgt. Chester"), Gabriel Alvarado ("Alvarado"), Ron Adams ("Adams"), Chris Wilhelmi ("Wilhelmi"), and Michael Harkins ("Harkins") (collectively, the "Defendants") move for summary judgment against Plaintiff. For the reasons stated below, Plaintiff's motion for partial summary judgment is denied. Defendants' motions for summary judgment are granted in part and denied in part.*fn1

BACKGROUND

This dispute arises out of allegations of sexual harassment and retaliation that Plaintiff suffered while employed as a correctional officer at the Will County Adult Detention Facility (the "ADF").

Parties

Plaintiff was employed at the ADF from March 18, 2006, to June 27, 2007. Defendant Sheriff's Office is a department of Will County, a municipality incorporated under the laws of the State of Illinois. Sheriff Kaupas has been the Sheriff of Will County since December 2002. Lt. Shifflet and Sgt. Luna were Plaintiff's supervisors. Officers Harkins, Adams, Wilhelmi, and Alvarado were correctional officers holding the same rank as Plaintiff. Plaintiff's fellow officers were not her supervisors and did not have the power to terminate or suspend her employment, organize her assignments, discipline her, or grant her vacation, compensatory or sick time. Officers Harkins, Adams, Wilhelmi, and Alvarado were also members of the Emergency Response Team (the "ERT"), a specialized unit that responded to emergency inmate disturbances at the ADF. ERT members are correctional officers who report to sergeants and do not receive or give orders to other correctional officers even in emergency situations.

Sexual Harassment

Plaintiff alleges that from March 2006 to some time around May 2007 she was sexually harassed by Sgt. Luna and officers Harkins, Wilhelmi, Adams, Alvarado, and Lt. Shifflet. The Court describes below the facts relevant to each individual defendant. Sergeant Luna

From March 2006 to August 2006 Sgt. Luna invited Plaintiff out on dates approximately fifteen times, invited her to his birthday party, made a bet with Harkins over who would be the first one to sleep with her, and yelled at her about the way she was wearing her bulletproof vest. On one occasion, Sgt. Luna aimed a Taser gun at Plaintiff and other officers, said "whose day is it to get Tasered?" and discharged the gun close to Plaintiff. On another occasion, while Sgt. Rose Albano ("Sgt. Albano") and other employees were walking by the scene, Sgt. Luna placed a baton between his genitals and, while simulating a sexual act, made phallic rocking gestures before touching Plaintiff's upper thigh (the "baton incident"). Sgt. Albano testified that she did not witness the baton incident.

After the summer of 2006, Sgt. Luna stopped bothering Plaintiff and, on November 24, 2006, he prepared her annual performance and gave her a fair review.

Officer Harkins

Harkins made sexually promiscuous comments and suggestions. Among other things, Harkins incessantly requested sexual favors from her, boasted about the size of his penis and about how good he was in bed, made hand gestures insinuating that he was going to have sex with her later, requested that she show him her breasts, told her that the only thing women are good for is to have sex with them before abandoning them, told her that the only way she could become sergeant was to make herself "available" or become a member of the "carpet muncher team," and referred to female Officer Tonya Grabavoy ("Grabavoy" or "Wolfe") as "grab-a-ho."

Despite Harkins' initial unwelcome conduct, around May 2006, Plaintiff forgave his sexual advances, stopped viewing his comments as sexually harassing, and became friends with him. Plaintiff went to bars and restaurants with Harkins, invited him to her house to talk and watch TV in the presence of her son, and hugged him goodbye. They drove to work together and sat in his or her car in the ADF parking lot to chat. Plaintiff referred to him as "puppy," sent him texts saying "meow," and sent him a picture of herself at the beach. Plaintiff thought Harkins was a friend who was helping her learn the job and was on her side. When Plaintiff learned that Harkins was married, she was irritated because he flirted with her and other women. Plaintiff and Harkins also talked about the latter's lack of sex in his marriage.

Furthermore, Harkins testified that Plaintiff wrote and gave him two cards. The first one was addressed to him as "my puppy" and was signed "love, your kitty." In the card, Plaintiff wrote that she viewed him as "a loving person that needs the same love back," and that he had "become something [she] never imagined." The second card was signed "meow" and stated "I can't get you out of my mind" and "I've memorized your face and the way you look at me . . . it melts my heart every time I think about it." Although Plaintiff admits that she wrote these cards, she denies she gave them to Harkins. Plaintiff maintains that she could not remember the name of the person to whom she gave the cards.

Between February and August 2007, Plaintiff made sixty calls to Harkins and was unable to explain why she called him over a month after she had stopped working at the ADF.

Officer Wilhelmi

Officer Wilhelmi made sexually promiscuous comments by asking her whether she was wearing a new bra, and by telling her that he liked her "tits" and that he wanted to see her wearing only a bulletproof vest. On one occasion, Wilhelmi went to her house unannounced. After Plaintiff allowed him in and the two talked about work, Wilhelmi put his hand on her leg and ran it up her thigh, in the presence of her son.

Defendants argue that despite Wilhelmi's conduct, Plaintiff remained friends and continued to socially interact with him. For instance, on his birthday, Plaintiff went out with him and two other officers and gave him a birthday card signed "love, Marlis." After the two officers left the party, Plaintiff accompanied Wilhelmi to a restaurant because he was drunk and she was concerned about him.

Plaintiff further alleges that some time after going out with Wilhelmi for his birthday, he met her at a copy room at the ADF, told her that he hadn't touched a woman in a long time, and attempted to kiss her.

Officer Adams

In February or March 2007, Adams made sexually promiscuous comments by telling her he had an open marriage, by commenting about her breasts and body, and by asking her if she liked to have sex or perform oral sex. Despite the sexual comments, Plaintiff asked Adams to help her talk to Lt. Shifflet about getting transferred to Adams' transportation unit and asked him to accompany her to review her personnel file. Between February 20, 2007 and July 11, 2007, Plaintiff made forty-nine telephone calls to Adams, one of which was made on July 11, 2007, two weeks after Plaintiff had stopped working at the ADF. Plaintiff did not provide an explanation for that phone call. Officer Alvarado

Alvarado repeatedly requested sexual favors and asked her whether she spat or swallowed. On one occasion, Officer Alvarado called her while she was in her pod and told her that Harkins was talking about how good she was in bed and that he wanted to have a threesome with her and Harkins. Additionally, Alvarado advised her to "throw caution to the wind," forget about what people think, do that stuff before she got married, and have sex with as many people as possible. Alvarado asked her to admit she had sex with Harkins, and told her that women were "birthing chambers." Plaintiff expressed her displeasure at Alvarado's remarks and asked him to stop bothering her. On another occasion, Alvarado put his hand on her leg and tried to give her a massage.

During her employment at the ADF, Plaintiff was assigned to work with Alvarado on only two occasions, November 17, 2006, and December 11, 2006.

Officer Tomalieh

During the summer of 2006, Tomalieh repeatedly asked for sexual favors, asked about her favorite sexual positions and sexual preferences, grabbed her shoulders and attempted to give her a massage, told her she had nice "tits," and told her about how he would like other employees at the jail to give him blowjobs. Tomalieah and other officers would also make gestures insinuating that Plaintiff was having sex or that she was "fuckable." Tomalieh finally told her that he could get another ERT member to vote for her to become an ERT officer if they became "closer friends."

Despite Tomalieh's attitude, Plaintiff became friends with him and, in several instances, invited him to her place late at night. On one occasion, when Tomalieh went to her home unannounced, Plaintiff helped him cover a hickey on his neck because she knew he was married. On another occasion, during a karaoke bar event, Tomalieh put his hand on her leg and tried to rub her shoulders. After that last incident, Plaintiff stopped talking to him. Tomalieh retaliated by calling her "whore," "cunt," and "bitch." Officers Perillo and Grozik

In March 2006, Officer Vince Perillo ("Perillo") repeatedly told her that she smelled nice and sniffed her. Officer Mike Grozik whispered that he needed a "personal haircut."

Nicknames

Plaintiff asserts that she was generally known at work by the nicknames of "swamp donkey" or "swamp bucket," which carry a sexual connotation. Although no co-worker ever called Plaintiff "swamp donkey" to her face, she heard Officer Fehreen Jesani ("Jesani") call her "swamp bucket." Lt. Shifflet testified that, on one occasion, he heard two different officers call Plaintiff "swamp donkey." Sgt. Chester and Perillo also heard Plaintiff being referred to as "swamp donkey" once or twice. Sgt. Alexander heard some employees say that other people have called Plaintiff "swamp donkey" but never personally heard any employee refer to her by that name. Plaintiff was unaware of the nicknames' meaning until another co-worker explained it to her. Officers Carey and Grabavoy, who worked the same shift as Plaintiff, and Caceres, never heard any officer use any nickname in reference to Plaintiff.

Pornography

Plaintiff alleges that during her assignments at the booking area in the summer of 2006, Lt. Shifflet allowed other correctional officers to play sexual games and watch pornography on their work computers. The screen savers of their computers also carried pictures of naked women. On one occasion, Plaintiff allegedly saw Alvarado playing the game of "whack-a-ball" which consisted of whacking images of testicles back and forth. Lt. Shifflet walked by the officers at least ten times while they were viewing pornography and playing pornographic games without reprimanding them. Instead, Lt. Shifflet sat with them and played whack-a-ball.

According to Defendants, Plaintiff exaggerates her exposure to pornography because Lt. Shifflet could not have condoned the officers' conduct more than two times. In addition, Lt. Shifflet denies that he ever played whack-a-ball or witnessed officers watch pornography or play sexual games at the ADF. Carey also testified that he never saw any co-workers view pornography or play whack-a-ball at the workplace. Retaliation

Plaintiff maintains that following her complaints to several supervisors about the ongoing sexual harassment, Lt. Shifflet and Sgt. Zaragoza retaliated against her.

According to Plaintiff, Lt. Shifflet started retaliating against her on October 31, 2006 by continuously assigning her to D-Pod which housed all the disciplined maximum security inmates and the Medical Unit ("Medical"), which housed mentally and physically unstable inmates. Plaintiff considered D-Pod and Medical undesirable assignments because disciplined officers were assigned to those posts and other officers and sergeants asked her what she had done to be assigned there so much. Lt. Shifflet referred to these assignments as "Siberia" and told her that he would put her "in Siberia until she calms down and stays under the radar."

Defendants dispute that Plaintiff was assigned to D-Pod and Medical for disciplinary reasons as there are no disciplinary assignments at the ADF. According to Defendants, Plaintiff was assigned to D-Pod and Medical because these areas are busier and more demanding than other areas. Defendants also argue that between October 31, 2006 and June 27, 2007, Plaintiff worked a total of 136 shifts and was assigned to D-Pod only 10 times and to Medical only 27 times. In addition, out of the 76 shifts in which Lt. Shifflet was the watch commander, Plaintiff was assigned to D-Pod or Medical only 20 times.

On January 23, 2007 Lt. Shifflet placed Plaintiff on proof of illness status which required her for the next six months to provide a doctor's note each time she took sick leave. Lt. Shifflet claims he placed Plaintiff on proof of illness status because she took sick days on January 14, January 18, and January 23, 2007, and all sick days were taken before or after previously scheduled days off, which suggested a pattern of abuse. About a month after putting her on proof of illness status, Lt. Shifflet told Plaintiff that as long as she had a doctor's note indicating that she was under his or her care, she did not need to justify her absence every time.

On March 10, 2007 Lt. Shifflet ordered Plaintiff to request permission from the housing and booking Sergeants before leaving her post, even for lunch breaks and trips to the restroom. Lt. Shifflet gave this order because he noticed Plaintiff frequently abandoned her post and other officers complained about her absence. In July 2007, Lt. Shifflet was transferred to a new position away from the ADF. Six weeks before his departure, he informed Plaintiff that she no longer needed permission to leave her post.

Plaintiff contests Lt. Shifflet's stated reasons for putting her on proof of illness notice or ordering her to obtain permission to leave her post. According to Plaintiff, she was subjected to retaliation because she had complained about sexual harassment. Plaintiff also claims she was treated differently than other officers because she was the only one Lt. Shifflet ordered to ask permission before leaving her pod. She felt humiliated when other officers asked her what she had done to deserve this treatment and made mocking jokes about her having to ask permission to "have a potty break."

The Inmate Incident

On June 20, 2007 a fight broke out between two inmates and Plaintiff attempted to separate them. The procedure regarding inmate disturbances required Plaintiff to immediately call Central Control which would then dispatch the ERT unit to the location of the disturbance. According to Sgt. Zaragoza, instead of calling Central Control, Plaintiff notified the Watch Commander and the Housing Sergeant, opened the cell door, and handled the altercation herself. When Sgt. Zaragoza learned about the incident, she reminded Plaintiff of the policy regarding inmate fights and asked her to document the incident in a report. Plaintiff prepared a report but Sgt. Zaragoza considered it untruthful as Plaintiff made no reference to a fight and failed to explain why she had a nurse examine the inmates. Sgt. Zaragoza was also skeptical about the report because she doubted that a correctional officer would open a cell door upon an inmate's request. Sgt. Zaragoza told Plaintiff to rewrite the report truthfully and include all pertinent information. Plaintiff submitted a second report which failed to mention that a fight had occurred and that inmates had suffered injuries. The information contained in the second report was inconsistent with the information Sgt. Zaragoza had collected from the inmates and the nurse who treated them. Sgt. Zaragoza believed that Plaintiff intentionally falsified the report to avoid discipline for her failure to comply with the procedure. On June 27 2007, Sgt. Zaragoza prepared a memorandum initiating an investigation that could potentially lead to disciplinary action. The memorandum was never delivered to Plaintiff because on June 27, 2007 Plaintiff took unpaid medical leave and never returned back to work.

Plaintiff denies that the June 20, 2007 incident involved an inmate fight or that she was untruthful in her report and states that she would never have opened the cell had a fight between inmates occurred. In her eyes, the June 20, 2007 incident and ...


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