United States District Court, N.D. Illinois, Eastern Division
For Eloisa Chaparro, Plaintiff: Sean M Mulroney, Sean Mulroney & Associates, Chicago, IL.
For City of Chicago, Illinois, Defendant: Alexandra C. Relias, LEAD ATTORNEY, City Colleges of Chicago, Office of the General Counsel, Chicago, IL; Deja C. Nave, City of Chicago (30 N LS), Chicago, IL.
For Brian Roney, Ron Bonadurer, Defendants: Alexandra C. Relias, LEAD ATTORNEY, City Colleges of Chicago, Office of the General Counsel, Chicago, IL; Daniel A. Kaufman, LEAD ATTORNEY, Sarah E. Flotte, Michael Best & Friedrich LLP (Illinois), Chicago, IL; Jolanda B Krawczyk, Michael Best & Friedrich LLP, Chicago, IL; Steven Jay Teplinsky, Michael Best & Friedrich (Illinois), Chicago, IL; Timothy L. Swabb, City of Chicago, Law Department, Corporation Counsel, Chicago, IL.
For James Washburn, Defendant: Alexandra C. Relias, LEAD ATTORNEY, City Colleges of Chicago, Office of the General Counsel, Chicago, IL; Timothy L. Swabb, City of Chicago, Law Department, Corporation Counsel, Chicago, IL.
For John Doe, Officers of the Chicago Police Department, each individually and in their official capacity, Defendant: Alexandra C. Relias, LEAD ATTORNEY, City Colleges of Chicago, Office of the General Counsel, Chicago, IL.
MEMORANDUM OPINION AND ORDER
John J. Tharp, Jr., United States District Judge.
Eloisa Chaparro, a Chicago police officer, brought this suit against two fellow officers, Brian Roney and Ron Bonadurer, her supervisor, Sergeant James Washburn, and the City of Chicago, asserting sexual harassment and sex discrimination, among other claims, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and 42 U.S.C. § 1983. Previously, this Court (Holderman, J.) granted in part and denied in part the defendants' motions to dismiss. Dkt. 46. Sergeant Washburn was dismissed from the suit. The only remaining claims in this case are: (1) equal protection under § 1983 against Brian Roney in his individual capacity; (2) equal protection under § 1983 against Ron Bonadurer in his individual capacity; (3) equal protection under § 1983 against the City; and (4) sexual harassment under Title VII against the City. The remaining defendants filed separate motions for summary judgment. Although the evidence is sufficient to establish that defendants Roney and Bonadurer routinely engaged in juvenile, sexually oriented conduct that has no place at work (or anywhere else, for that matter), the Court is constrained to conclude that Ms. Chaparro cannot prevail on her remaining legal claims and that the motions for summary judgment must be granted.
A. Chaparro's Local Rule 56.1(b)(3) Response and Statement of Additional Facts.
The Court must first address Chaparro's failure to comply with Northern District of Illinois Local Rule 56.1,
which provides litigants with instructions and procedures for properly filing and responding to motions for summary judgment. Rule 56.1(b) requires:
a concise response to the movant's statement that shall contain ... a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and ... a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.
N.D. Ill. L.R. 56.1(b)(3)(A)-(C). As the defendants correctly point out, Chaparro has failed to comply with these requirements. Her responses to the defendants' statements of fact include inaccurate citations to the record, the absence of any citations to the record, and general denials without any support. " [A] district court is entitled to expect strict compliance with rule 56.1." Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). Any statements of fact offered by a defendant and not properly responded to by Chaparro are deemed admitted to the extent they are supported by admissible record evidence. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).
In addition, the Court will disregard paragraphs 4-5, 15, 20-23 in Chaparro's statement of additional facts, which rely on an affidavit which she attaches as an exhibit to her submission. See Dkt. 150-2; see Pl.'s Stmt. ¶ ¶ 4-5, 15, 20-23. That affidavit contradicts Chaparro's deposition testimony. For example, Chaparro testified that she heard Roney and Bonadurer make inappropriate comments between 20 and 50 times (Pl.'s Dep. (Dkt. 115-1) at 92:6-93:2, 109:4-12), but she could only recall four specific incidents for each defendant and added that nothing would refresh her memory at the time. Id. at 94:9-14 (" I'm sure there were [more comments], but I don't remember verbatim." ); 105:11-16 (" I'm sure that there [are] times that I haven't told you because I can't remember the exact dates or times." ); 108:7-14 (" I can't think of any [more comments] right now, but I know there were some." ); 112:5-18 (" Q: Are you able to list [Bonadurer's] comments? A. Not right now." ).
The Seventh Circuit " ha[s] been highly critical of efforts to patch up a party's deposition with his own subsequent affidavit." Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995). Where deposition testimony and an affidavit are in conflict, the affidavit is to be disregarded " unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Id. at 67-68; see also United States v. Funds in Amount of One Hundred Thousand One Hundred and Twenty Dollars, 730 F.3d 711, 718 (7th Cir. 2013) (" we do not allow litigants to manufacture material fact questions by affidavit testimony that contradicts prior sworn testimony." ). Chaparro makes clear in her deposition that she cannot recall additional comments or incidents of harassment, and told the questioner that nothing at the time would refresh her memory. It is unclear, and Chaparro provides
no explanation, as to why Chaparro is now able to recall additional incidents but could not do so at her deposition. That omission is particularly problematic given that she has now added to the inventory more incidents than she offered during her deposition (this is not a case where a witness neglected to mention a single incident) and the alleged incidents involved graphic conduct by the defendants which she now purports to recall clearly. The purpose of discovery is to narrow the issues and give the opponent an opportunity " to secure information about the existence of evidence that may be used at trial ..." 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2001 (3d ed. 2014). Chaparro did not provide the defendants with the opportunity to discover the additional incidents she now recalls before summary judgment, and because of this unexplained discrepancy, the affidavit and the statements of fact that rely on the affidavit will be disregarded.
Finally, any additional facts submitted without leave of court in excess of the 40 allowed by Local Rule 56.1 (which was not requested) are stricken and have also been disregarded.
B. Undisputed Material Facts
Eloisa Chaparro has been employed by the Chicago Police Department (" CPD" ) since 1988. Pl.'s Resp. to City's 56.1 Stmt. (Dkt. 140-3) ¶ 2.
In 2003, Chaparro joined the Tech Lab, which is part of the CPD's Organized Crime Division. Id. ¶ 4. At the time, the Tech Lab included about a dozen police technicians and police officers performing the duties of technicians. Id. ¶ 9. Chaparro fell into the latter category; she held the title of Police Officer, but she performed the duties of a technician. Id. ¶ 4. Roney and Bonadurer were both police technicians during the relevant time period; they had no authority to hire, fire, promote, demote, transfer or discipline other members of the Lab, including Chaparro. Id. ¶ ¶ 5-7. Sergeant James Washburn was in charge of the Tech Lab from 2007 until 2012. Id. ¶ 8.
The Tech Lab provides technical services to the Organized Crime Division and forensic video services to the Detective Division. Id. ¶ 9. More specifically, Tech Lab employees provides technical support for consensual overhears (court-authorized eavesdropping), wiretaps, surveillance vans, and GPS tracking devices. Id. ¶ 10. Tech Lab employees also retrieve and duplicate video evidence of robberies, homicides, kidnappings, and other crimes. Id. Chaparro testified at her deposition that a " part of [her] job" was coming across gruesome scenes, including naked bodies, but that she had never come across sexually explicit images as part of her job. Id. ¶ 3; Pl. Dep. (Dkt. 115-1) at 52:23-53:3. She further testified that she was a " tough cookie" and " thick skinned." Pl.'s Resp. to Def. Bonadurer's 56.1 Stmt. (Dkt. 140-2) ¶ 50.
The Tech Lab contains a media room for copying evidence, a communal refrigerator, and computers that were, at least at the time, used by all Tech Lab employees and were not password protected. Id. ¶ ¶ 11-12. The Tech Lab was also open to other ...