The opinion of the court was delivered by: Magistrate Judge Martin C. Ashman
MEMORANDUM OPINION AND ORDER
Plaintiff Pamela Mercer ("Plaintiff") brought this action against Defendants Cook County, Illinois, a unit of local government, Cook County Sheriff's Department, David Pitts ("Pitts"), Gus Paleologos ("Paleologos") (collectively "Defendants") and Local Council 3695 of the American Federation of State, County, and Municipal Employees ("the Union"). Pitts and Paleologos, both of whom are supervisors employed by the Cook County Sheriff's Department, are sued in their individual capacities. Alleging various acts of sex and race discrimination, retaliation, and harassment, Mercer asserts claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., the First Amendment and the Equal Protection Clause, 42 U.S.C. § 1983, and the intentional infliction of emotional distress. Mercer also originally sought indemnification from Cook County for her alleged injuries pursuant to 745 ILCA 10/9-102, and asserted a cause of action against the Union for failing to fairly represent her concerning her disputes with the Defendants.*fn1
Before the Court is Defendants' motion for summary judgment concerning Mercer's claims of a hostile work environment based on sex and race, Title VII claims for race and gender discrimination, the Equal Protection Clause, the First Amendment, and the intentional infliction of emotional distress. The parties have consented to have this Court conduct any and all proceedings in this case, including entry of final judgment. 28 U.S.C. § 636(e); N.D. Ill. R. 73.1(c). For the reasons discussed below, the Court finds that Defendants' motion is granted.
Mercer is an African-American woman who began working for the Sheriff's Office Department of Corrections ("DOC") as a correctional officer in April 1988.*fn2 (SOF ¶ 5.) She was eventually promoted to the rank of sergeant in 1993 and, in late 2005, was assigned to work at the Department of Community Service and Intervention ("DCSI"). (Id. ¶¶ 6-8.) The DCSI is a program designed to assist inmates in the DOC to re-enter society through a variety of programs. Up to 449 inmates are housed in five buildings that make up the DCSI. (Id. ¶¶ 8-10.) Three shifts of personnel cover the DCSI facility throughout a twenty-four hour period, and Mercer was assigned to the 11:00 p.m. -- 7:00 a.m. shift. Between fifteen to twenty other officers also worked this shift, including a Sergeant James and Sergeant Wright. Mercer's duties included supervising correctional officers, scheduling lunches, maintaining order, and supervising searches and the movement of inmates. (Id. ¶ 18.) She was also required to counsel non-performing correctional officers through informal conversations or, under certain conditions, to pursue more severe discipline. (Id. ¶ 20.) In turn, Mercer was supervised by plaintiffs Paleologos and Pitts, both of whom are lieutenants. (Id. ¶¶ 14-17.)
In 2007, a series of informal and formal complaints were filed against, and by, Mercer. On February 18, 2007, Mercer filed an inter-office memo with Internal Affairs Division ("IAD") concerning what she perceived to be an attempt by her superiors to intimidate her and to create a hostile work environment. These acts included being called to a meeting that Mercer believed to be pointless, foul language used by Lt. Pitts, and an allegation that Lt. Paleologos touched her without permission. (Pl.'s Mem. at Ex. 14.) This complaint was followed up with another inter-office memo from Paleologos to his supervisor on March 28, noting that a number of other officers had complained that Mercer supervised them too closely. Paleologos defended Mercer by stating that she was merely "doing her job" in supervising the officers. (Id. at Ex. 2.)
Things took an uglier turn in August 2007 after Mercer returned from vacation on August 14. She discovered a sexually-graphic drawing in a washroom of Building 3, with her name and the name of Officer J.W. Smith written over the top of the picture. Mercer complained about the drawing in a memo written to her shift commanders, Lts. Pitts and Paleologos, on August 15, 2007. (Id. at Ex. 4.) She noted that a less graphic drawing had also been placed in a second bathroom and conjectured that the handwriting looked familiar based on her informal comparison of it to letters found in an office log book. (Id.) By all accounts, Mercer gave the book to Paleologos, who promptly washed the offending drawings off the walls. Mercer took offense at Paleologos' promptness and followed it up with an August 27, 2007 memo to her union complaining that Paleologos "immediately came over and washed the wall" without preserving the evidence. (Id. at Ex. 5.) For his part, Paleologos stated that he and Pitts were unable to correlate the handwriting with any particular log entry, and their investigation into the matter was unable to produce a witness to the incident. (SOF ¶ 55; Pl.'s Mem. at Ex. 12.) For seven days thereafter, Paleologos and Pitts announced at roll calls that such behavior would not be tolerated and that the perpetrators would be disciplined. (SOF ¶ 56.)
On September 5, 2007, Mercer filed a grievance with her union concerning alleged violations of the union's collective bargaining agreement. These included allegations of "ghost payrolling," staff insubordination without discipline, and complaints that Mercer had been physically pushed by a subordinate. She also complained that she was the victim of negative comments when she was not present for roll call and was subject to ongoing personal harassment. (Defs.' Mem. at Ex. 4.) The complaint was forwarded to the DOC's Inspector General. (Id. at Ex. 5.) Mercer also filed a similar complaint with the Sheriff's Office IAD. (Pl.'s Mem. at Ex. 7.)
In October 2007, a union representative told Mercer that she would be transferred out of DCSI to Division IV during the investigations associated with these complaints. IAD's Chief Investigator, Timothy Kaufmann, wrote Mercer on October 24, 2007 and stated that, as Mercer had alleged that she was being harassed at her current work location, such a transfer was required. (Defs.' Mem. at Ex. 14.) Mercer remained on the DCSI payroll for the duration of her transfer. (SOF ¶ 23.) Mercer promptly utilized two weeks of accumulated time under the Family and Medical Leave Act, called in sick every work day for ten months, and filed a grievance concerning her temporary transfer to Division IV. (SOF ¶¶ 26-27.) Mercer was transferred back to DSCI in October 2008. (Id. ¶ 28.)
In October 2007, Mercer filed five charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging race discrimination, gender discrimination, and retaliation against her union and the Cook County Sheriff's Department. After receiving right to sue letters, she timely filed this action on September 8, 2009.
Summary judgment is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Such a fact issue exists only where a rational trier of fact could find for the nonmoving party. Id. at 324. The evidence, together with all reasonable inferences that can be drawn from it, must be viewed in the light most favorable to the nonmoving party. Miller v. Am. Family Mut. Ins., 203 F.3d 997, 1003 (7th Cir. 2000). The nonmoving party, however, cannot overcome a summary judgment motion by relying on unsubstantiated facts or by resting on its pleadings. See Hemsworth, II v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). Instead, the party that bears the burden of proof on an issue must demonstrate by means of admissible evidence that a genuine issue of material fact exists that requires a trial. Id. A court neither weighs conflicting evidence nor resolves factual disputes in deciding whether summary judgment is appropriate. Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996).
As an initial matter, Mercer concedes that summary judgment is proper concerning her First Amendment claim (Count IV) and her cause of action for the intentional infliction of emotional distress (Count V). Therefore, the Court grants ...