The opinion of the court was delivered by: James E. Shadid Chief United States District Judge
E-FILED Friday, 19 October, 2012 01:33:15 PM Clerk, U.S. District Court, ILCD
This matter is now before the Court on Motions for Summary Judgment by Defendants. For the reasons set forth below, the Motion for Summary Judgment by Defendants Hauk, Lamb, and Zaborac  is GRANTED IN PART and DENIED IN PART. The Motion for Summary Judgment by Defendants Peoria Police Department, Falatko, Boland, Settingsgaard, and the City of Peoria  is also GRANTED IN PART and DENIED IN PART.
The Complaint alleges 3 counts: (1) a violation of Burwell's 14th Amendment rights and a violation of 42 U.S.C. §1983 against all Defendants for hostile work environment, gender discrimination, and retaliation; (2) a violation of Title VII against the City for hostile work environment, gender discrimination, and retaliation, and (3) a claim of assault and battery against Boland, Hauk, Zaborac and Lamb. Defendants Hauk, Lamb, and Zaborac, officers of the Peoria Police Department ("PPD"), Sergeants Falatko and Boland, Superintendent/Chief Settingsgaard, and the City of Peoria have filed Motions for Summary Judgment, to which the Plaintiff has responded. The issues have been fully briefed, oral arguments have been made, and this Order follows.
There is much disagreement over the facts themselves, let alone which ones constitute material or immaterial facts. Given their sheer number and the fact that they are full of argument and conjecture, the facts are addressed, for purposes of the Motions and this Order, in summary fashion. Keeping in mind that the facts are disputed, but that genuine disputes of fact must be construed in favor of the non-moving party at the summary judgment stage, the facts specific to each police officer defendant as alleged by Plaintiff are addressed individually as to each Defendant.
Plaintiff, Katherine Baer Burwell ("Burwell"), and Defendants Christopher Hauk ("Hauk"), Mark Lamb ("Lamb"), and Aaron Zaborac ("Zaborac") were each Officers with the Peoria Police Department ("PPD").*fn1 Defendants Michael Falatko ("Falatko") and Michael Boland ("Boland") are Sergeants with the PPD and at certain times, supervised the Officers. Defendant Steven Settingsgaard is the Chief of Police.
Generally, the Officers are alleged to have made demeaning comments within the first few months of Burwell being assigned to the Violent Crimes Unit ("VCU"). Part of the job duties of an officer with the PPD is to provide supervision or guidance to less experienced officers and to create and maintain effective working relationships. This is especially true with respect to new officers. In particular areas such as interviewing witnesses and/or suspects and writing search warrants, more experienced officers could greatly assist those less experienced.
Burwell was transferred to VCU in 2004 and initially had no issues. However, as time went on, the Officers are alleged to have commented on her breasts, stared at her breasts, told her she had to run around the desk topless in order to be initiated into the VCU, thrown objects at her, insulted her, suggested that she has her job because of her father's friendship with the then Assistant Chief of Police, told her VCU was a man's world, refused to help her with job duties, and shunned her, among other things. The remaining named Defendants are alleged to have allowed this to take place.
Hauk was a senior officer in the VCU. Burwell first met Hauk in 1999 and got along well with him, even socializing outside of work with him. When they were both detectives in the Juvenile Division, Hauk began harassing Burwell, starting with walking by her desk and flicking minimal amounts of water on her somewhere between 5-10 times. The water flicking stopped once they were both transferred to VCU, but the harassment did not. Once they were in VCU, Hauk, as well as others, allegedly tried to look down her shirt. Hauk also refused to assist Burwell with her work, specifically refusing to help her interview a person of interest in a murder case, when she had been in the VCU for only 7 days. Allegedly, he also accused her of failing to follow proper procedures. On two occasions, Hauk further refused to help her interview suspects in custody related to cases that he was investigating. Burwell spoke to Falatko, informing him that Hauk refused to help her, and Falatko in turn spoke to Hauk. Hauk stated he was not going to help her and no further action was taken. On many of the occasions when Burwell requested assistance, Hauk was unoccupied and doing non-duty related things, like surfing the internet.
On August 27, 2007, Burwell responded to an armed robbery involving a shooting by an officer, and Hauk was assigned as the officer in charge of the scene. Hauk only allowed her to interview one witness and then took over the interview of another. Burwell was assigned to video-tape the interviews. Burwell was again assigned video-taping duties by Hauk on a murder in December 2009 while numerous male detectives from various divisions were allowed to interview suspects.
Hauk also threw a stuffed bird and rubber balls at her, had a mirror on his desk so he could look behind him to where Burwell sat in order to stare at her, laughed when another detective said she should run around her desk topless as initiation into the VCU, made derogatory comments to her, and shunned her. Hauk also made a comment during roll call in 2007 that the only reason Burwell had her job was because of her father and told her VCU was a man's world. On one occasion, Hauk left a department vehicle "trashed" and empty of fuel, knowing that Burwell would be the next to use the vehicle. On another occasion, Burwell injured her hand and Hauk and Zaborac said that she did not really injure herself and was being treated better than other officers with injuries. Finally, when Hauk, Burwell and others were drinking socially at a bar, Hauk took Burwell's cell phone, found a picture of her bare breasts and sent that photo another police officer.
Lamb was another more experienced officer. He was charged with training and assisting less experienced officers if they asked for or needed assistance. Despite this, Lamb refused to help Burwell on numerous occasions from 2004-2007 in both the Juvenile and VCU divisions. His refusal to help Burwell interfered with her ability to do her work. Lamb was only assigned to work with Burwell on one occasion and excluded her from field work, choosing to work with Hauk instead while Burwell was relegated to watching suspects in custody.
Lamb also repeatedly threw a stuffed bird and a rubber ball at Burwell, once hitting her in the breast and leaving a bruise. Like Hauk, he shunned her. Prior to October 2, 2007, no one ever discussed with Lamb that there were any problems. In 2004 or 2005, Lamb told Burwell that she did not need to eat anything because she was fat enough; this statement occurred when she was pregnant.
Zaborac was also a more experienced officer in the VCU. He offered to assist other less experienced officers and was lauded in his evaluations for doing so. He never experienced problems getting help from other officers when he needed it. Zaborac repeatedly refused to help Burwell and on one occasion, made his daughter's birthday invitations rather than helping her. Zaborac only recalls being assigned to one case with Burwell, when they were Juvenile, but does not recall specifically how he assisted her. No one ever spoke to Zaborac about his actions before or after Burwell's 2007 complaint.
Zaborac was allowed to hang his coat on partitions in the criminal investigation bureau, as were other male officers, while Burwell was not. He also threw rubber balls or a stuffed bird at Burwell and shunned her. Zaborac is alleged to have made hundreds of comments referring to the size of Burwell's breasts, suggested that the two of them "get together," and made other vague inappropriate remarks. These comments were made at least weekly between mid-2005 to October 2007. Burwell allegedly responded with remarks like "ha ha funny" and began crossing her arms or rolling her eyes as the remarks continued. She says this was intended to communicate that she wanted the comments to stop. These acts ceased in October 2007.
From mid-2005 to 2007, Zaborac attempted to throw items such as candy down Burwell's shirt. She initially responded by throwing the candy back, and then started saying things like "knock it off". Zaborac says this was playful and a game; she denies it was a game. The record indicates that Burwell and Zaborac also doctored photos of one another and sent them to each other as jokes. In one such photo, Burwell was made to be a witch, which she argues is worse than others created by officers such as having phony black eyes, missing teeth, etc.
Defendant Sergeants Falatko and Boland
In the PPD, sergeants were charged with a number of duties, including evaluating employees who they supervised. Also, they participated, as members of a larger team, in interviews to determine which applicants would be chosen to fulfill openings within the detective ranks. Sergeants have a duty to prevent and correct sexual harassment and hostile work environments. This duty is set forth in the City's "Workplace Violence Prevention and Anti-Harassment Policy" and the Peoria Police Department's general order regarding discrimination and harassment. Pursuant to this policy, supervisors should document all complaints of harassment.
Falatko was a sergeant and first worked with Burwell in the Juvenile division. Falatko told Burwell she could not hang her coat on a partition, which he said was an order from then-Captain Philip Korem. When Burwell returned from a vacation, Falatko asked her why she had nothing to work on, despite the fact that he was in charge of making assignments. Falatko also asked Burwell to complete her reports in a specific manner, i.e., dictate them, which she believed was different from other detectives. He also is alleged to have stared at her breasts and failed to stop the behavior of other detectives that she complained about.
Burwell complained to Falatko in January 2008 that other detectives, specifically Hauk, Lamb and Zaborac refused to help her, but he did not follow up or order those detectives to assist her. Burwell made this complaint on other occasions, and he never followed up or ordered anyone to assist her. Following the incident with Hauk making the remark during roll call and the incident in which she was struck with the rubber ball, Falatko spoke with Hauk and asked Burwell to write a special report detailing the incident with the ball. The following day after Falatko spoke to Hauk and Zaborac, he spoke to Burwell. She told him she was offended by the comments about her father and Falatko stated he thought the air had been cleared about that. When she responded that it happens on a daily basis, Falatko asked her why she had not reported it sooner, to which she replied that she thought he knew about since he was allegedly present during the roll call incident the night before.
In August 2007, a complaint was made that Burwell was wearing revealing clothing and showing too much of her chest, and Falatko spoke to her about proper attire. Following this discussion, Burwell asked for a follow-up meeting. On August 9, 2007, she met with Falatko and Lieutenant Weiland. During this meeting she told them both all the things that had been occurring, including the demeaning comments, sexual comments, vulgar language, other detectives refusing to work with her. In general, Falatko condoned the behavior of the detectives and failed to stop it. Following the incident in which Plaintiff was struck with a rubber ball, Plaintiff yelled at Hauk, Lamb, and Zaborac while Falatko sat at his desk and took no action. Later that evening, Falatko asked Zaborac and Hauk what happened, both responded that nothing happened. However, Falatko never spoke to Plaintiff about what happened and never did any further investigation.
Boland became Burwell's supervisor in 2008. Shortly after he took over, Burwell informed Boland that other detectives refused to work with her, but he never spoke to any of them about the issue. When she requested assistance from him, Boland never ordered anyone to help her, but sometimes would help her himself.
Boland issued Burwell three counseling sessions during the time he supervised her. One counseling was for making handwritten notes on the outside of case files, namely dates and times for interviews, though she alleges that this was common practice in the department. However, Boland also issued three counselings during the same period of time to a male detective.
Boland also accused Burwell of being insubordinate based on her actions during the course of an investigation when she threw her hands in the air and said something to the effect of "not now, I need a few minutes". Burwell states this was because she requested assistance on the matter, which was a Juvenile matter, and received none so she did not have ample time to complete the tasks Boland ordered and was simply indicating that she needed more time.
On April 16, 2008, Burwell alleges that Boland provoked her to lose her temper for which she was later given a three day suspension by Chief Settingsgaard. Sergeant Boland had the address of a suspect Plaintiff needed to locate and interview and would not give it to Plaintiff, stating that he wished to interview the suspect with her. A few hours later, Boland told Plaintiff that he and another detective were going to interview a witness and informed Plaintiff that she would not be going and instead would be responsible for the paperwork for the case. Plaintiff informed Boland that he should take the case and complained that she was never allowed to do follow ups on her own cases. She then sat at her desk, at which time Boland pulled her hair clip and titled her chair back until she ultimately raised her voice, pointed her finger at his face and cursed at him.
Chief Steven Settingsgaard became Chief of the PPD on May 2, 2005. Settingsgaard became aware of the issues Plaintiff was experiencing sometime shortly after her complaint regarding the ball throwing incident on October 2, 2007. Plaintiff filed a complaint, and Settingsgaard ordered a formal investigation into the complaint on October 11, 2007. Following the complaint, it is undisputed that all comments of a sexual or inappropriate nature stopped, as did all ball throwing and stuffed bird throwing, and the atmosphere as a whole changed. Co-workers were guarded and apprehensive, but only toward Plaintiff, not to one another. The investigation resulted in a finding of all accusations being unsubstantiated, save for Lamb throwing the ball at Plaintiff. When Settingsgaard and Assistant Chief Korem met with Plaintiff to discuss the findings of the investigation, he informed her of the findings and suggested that he was aware of the type of atmosphere in the detective bureau, advising Plaintiff that things would improve if she improved her relationship with Hauk. He also suggested that she take advantage of seeing a mediator with Hauk, which she states that she did but Hauk declined.
The investigation was conducted internally by an investigator named Hlavacek. Prior to the investigation, Settingsgaard was advised by a City attorney that the normal course of the process was to begin an internal investigation, then assist the Equal Opportunity Manager in their outside investigation. However, in this case, the City's EO manager did not perform his own investigation, instead relying on the PPD's internal investigation to make findings. The investigation purportedly gathered evidence against the Plaintiff's credibility but never asked any witnesses about the credibility of the other witnesses. Additionally, department procedure dictates that no statements need be recorded, but Hlavacek recorded his interview with Plaintiff. There is evidence that Hlavacek had some type of relationship, the ...