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Hespe v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

April 20, 2018

KELLY HESPE, Plaintiff,
v.
CITY OF CHICAGO, GERALD BREIMON, and SARAH MCDERMOTT, Defendants.

          MEMORANDUM OPINION AND ORDER

          JORGE L. ALONSO UNITED STATES DISTRICT JUDGE.

         After a years-long affair with a Sergeant went sour, plaintiff Kelly Hespe (“Hespe”), a police officer, filed a twelve-count complaint against defendants City of Chicago (the “City”), Gerald Breimon (“Sgt. Breimon”) and Sarah McDermott (“Lt. McDermott”). Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983 and state law. The Court previously dismissed some of plaintiff's claims, and defendants have moved for summary judgment on plaintiff's remaining claims.[1]

         For the reasons set forth below, the Court grants in part and denies in part defendants' motion for summary judgment.

         I. BACKGROUND

         The following facts are undisputed unless otherwise noted.[2]

         Plaintiff Hespe was already married to a Chicago Police Officer when she joined the Police Academy in March 2001. There, plaintiff learned, among other things, how to defend herself from attackers and how to deal with and report domestic violence. She also received training on how to report sexual harassment. Since Officer Hespe finished the Police Academy (and at all times relevant to this case), she has been assigned to the 14th District.

         The Chicago Police Department (“CPD”) operates through twenty-five geographic districts, each of which is led by a Commander. The chain of command down from the Commander is Captain, Lieutenant, Sergeant and Officer. Lieutenants serve as Watch Commanders (a watch being a shift) and make officer assignments, which means the Lieutenant decides which officers will be partners. Some officers have regular partners, but, on any given night, the Lieutenant might split the partners and pair each with a different Officer. The Lieutenants are also responsible for assigning each Officer to the “log” of one of the Sergeants for each shift. During each shift, each Sergeant is responsible for observing each Officer assigned to his or her log at least twice and then recording the details of the observation onto his or her log. Sergeants are empowered to issue verbal counseling with respect to minor transgressions, such as uniform deficiencies. Sergeants can give orders to police officers, and, if those orders are lawful, police officers are expected to follow them. Sergeants lack the authority to make decisions with respect to termination, suspension, promotion or transfer and also lack the authority to change work schedules or assignments.

         As a police officer, plaintiff's duties included protecting life and property and maintaining order. She was responsible for apprehending suspected violators of the law through the use of force, arrest and citation procedures. In addition, plaintiff was charged with enforcing state and local traffic laws via arrest and citation procedures. Plaintiff was also charged with knowing: public safety procedures and strategies; geographic locations in the City; and City and CPD policies, procedures and regulations. Among her job duties, plaintiff occasionally responded to domestic violence calls and gave advice to victims of domestic violence.

         The interactions relevant to this case started in the autumn of 2008, not long after defendant Sgt. Breimon transferred to the 14th District and was assigned to First Watch, which is the overnight shift. Plaintiff also worked First Watch.

         Plaintiff met Sgt. Breimon through her then-partner, Officer Gloria Gomez (“Gomez”). It was around Halloween when Sgt. Breimon told plaintiff that he should be Tarzan and she should be Jane. Plaintiff told Gomez she did not like the way Sgt. Breimon was talking, and Gomez passed that message onto Sgt. Breimon. A few months later, in the spring of 2009, Sgt. Breimon showed plaintiff pictures of a naked women, who had texted the photos to him.

         About the same time, Sgt. Breimon “pressured” (in plaintiff's words) her to accept his Facebook friend request. Plaintiff accepted Sgt. Breimon's Facebook friend request, and she never blocked his access to her Facebook account. By the summer of 2009, plaintiff and Sgt. Breimon had become actual (not merely Facebook) friends. By then, they had started carpooling together, sometimes at plaintiff's request.

         Plaintiff's sexual relationship with Sgt. Breimon began in November 2009 and ended in November 2012. (By August 2011, plaintiff was divorced from her husband.) It is not clear from the record how the relationship started, but it is undisputed that, during the course of the relationship, plaintiff and Sgt. Breimon went on dates to movies, restaurants and concerts and met each other's children. It is undisputed that during the course of the relationship, plaintiff told Sgt. Breimon she loved and missed him. It is undisputed that plaintiff sometimes initiated sex with Sgt. Breimon and described to Sgt. Breimon what she wanted to do to him sexually. Sgt. Breimon and plaintiff communicated and flirted over social media. In late 2009 or early 2010, plaintiff stripped off her clothes for Sgt. Breimon over Skype.

         The relationship between Sgt. Breimon and plaintiff was not limited to their off-duty hours. Sgt. Breimon and plaintiff engaged in oral sex and intercourse at the 14th District (in the parking lot, in the storage room and in the Sergeant's room) and in Humboldt Park. They texted each other during work hours to pass the time. Plaintiff would sometimes sit in Sgt. Breimon's squad car or they would park their cars next to each other so that they could talk.

         Although plaintiff testified that she tried to make the relationship work because she thought she loved and cared for Sgt. Breimon, she also put forth evidence of her concern that if she were not in a relationship with him, her job would be negatively affected. Plaintiff put forth evidence that Sgt. Breimon told her his mother could “get rid of her, ” by which plaintiff apparently means she worried his mother would terminate her employment. (It is undisputed that Sgt. Brieman's mother had been the Assistant Deputy Superintendent for the CPD before she retired in 2001, seven years before Sgt. Breimon and plaintiff met.) In addition, plaintiff was worried that if she were not in a relationship with Sgt. Breimon he would not “stand up for her.” This may have been a concern for her, because, as plaintiff testified, one officer told her he did not want to work with her due to his fear of getting hurt and another officer asked her whether she could handle the job. Plaintiff was worried that if she were not in a relationship with Sgt. Breimon, he would not “ride on jobs” with her and would not “back her up.”

         Evidence suggests Sgt. Breimon was protecting plaintiff. One police officer testified that Sgt. Breimon “showed up” on plaintiff's jobs and was both protective and helpful to her with her day-to-day routine. Sgt. Breimon once told another police officer that he rode on plaintiff's jobs to keep an eye on her and to make sure nobody got her into trouble.

         The relationship sometimes interfered with plaintiff's ability to do her job. Sgt. Breimon sometimes logged plaintiff and her partner as being on long missions so that they could instead go on long lunches with Sgt. Breimon. Sgt. Breimon demanded (it is not clear from the record how many times) that plaintiff come to the 14th District so that he could kiss her and check whether she was wearing undergarments. Sgt. Breimon regularly contacted plaintiff by text and telephone while they were both working, which impacted plaintiff's ability to concentrate on her job. Although it is not clear from the record when this happened, Sgt. Breimon sent plaintiff messages through the personal data terminal, which plaintiff thought was harassing.

         By 2012, the relationship was rocky. In early 2012, Sgt. Breimon followed plaintiff and her partner to Illinois Masonic Hospital and demanded that plaintiff sit in his car with him. Sgt. Breimon screamed and yelled at plaintiff. When she wanted to leave, he called her a “fucking whore.” Later that year, Sgt. Breimon reached into the window of plaintiff's parked squad car, grabbed her arm and asked her why she did not answer her phone. In July 2012, while the two were arguing in a car, Sgt. Breimon threw a handbag. The parties dispute whether Sgt. Breimon intended for the handbag to hit plaintiff.

         Sometime in 2012, Lt. Lameka, who was assigned to the 14th District First Watch from October 2010 to September 2014, learned that Sgt. Breimon and plaintiff were in a relationship. In August or September of 2012, Sgt. Breimon informed Lt. Lameka that he was taking plaintiff as his date to the wedding of a co-worker. Plaintiff later asked Lt. Lameka for the night off. Once Lt. Lameka was aware of the relationship, she tried to assign the two to different sectors.

         At some point, plaintiff does not say when, Sgt. Breimon threatened to destroy plaintiff's career and threatened to hold an outdoor roll call if plaintiff would not be in a relationship with him. Although she does not say when, plaintiff testified that Sgt. Breimon showed up at plaintiff's house uninvited and “stalked” her at her daughter's school.

         The relationship was over in or about November 2012. Near the end of the relationship, plaintiff informed Sgt. Breimon by text message that she was afraid of him and wanted him to leave her alone. By December 2012 or January 2013, Sgt. Breimon transferred to the day shift.

         Plaintiff remained a police officer on First Watch. By this time, a different Lieutenant, defendant Sarah McDermott (“Lt. McDermott”) had joined the 14th District as First Lieutenant on the First Watch. Lt. McDermott had been with the CPD since 1986. Lt. McDermott, as Lieutenant, was responsible for assigning police officers their partners each night. When an officer was left without a partner, Lt. McDermott made a point to ride with that officer for safety reasons and because it provided an opportunity to observe and teach. For example, Lt. McDermott rode with Officer Ricken when he was assigned to work without a partner. During the ride, Lt. McDermott quizzed Officer Ricken on “general order oriented questions.”

         Lt. McDermott rode with plaintiff for the first time on March 7, 2013, a night when plaintiff had no partner. Although Lt. McDermott made the decision on the spot to ride with plaintiff, she was happy to have the chance to ride with plaintiff, because she had been concerned about plaintiff's abilities as a police officer. Previously, when plaintiff had been assigned to protect the scene of a police-involved shooting, it appeared to Lt. McDermott that plaintiff was not properly performing her job. In addition, on at least two occasions, plaintiff had been late to roll call.

         For the March 7, 2013 shift, Lt. McDermott assigned plaintiff as driver so she could observe plaintiff's performance. Lt. McDermott sat next to plaintiff, and Sgt. Tamara Margolis (“Sgt. Margolis”) sat in the backseat. The ride lasted from about 11:15 p.m. until about 3:00 a.m. Lt. McDermott observed that plaintiff lacked the knowledge of a street police officer and had trouble performing a traffic stop. Lt. McDermott observed that plaintiff did not seem to know where she was going, drove slowly (20 miles per hour) and did not use emergency equipment.

         Lt. McDermott attempted to assess plaintiff's knowledge of the 14th District by asking her questions about the District's geography. When plaintiff did not know the answers, Lt. McDermott drew plaintiff a map and began quizzing plaintiff (as she had done with other officers) in an attempt to teach her. While Lt. McDermott was quizzing plaintiff about the streets in the 14th District, Lt. McDermott held her baton in her hands. Plaintiff testified that Lt. McDermott told plaintiff that if she answered any questions incorrectly, Lt. McDermott would hit plaintiff in the head with her baton. When plaintiff answered incorrectly, Lt. McDermott hit her own hand with the baton. It is undisputed that Lt. McDermott never hit plaintiff with the baton. During the game, Lt. McDermott and Sgt. Margolis laughed at plaintiff.

         During the ride, plaintiff did not say that she was upset. Instead, she laughed and thanked Lt. McDermott for helping. In addition, plaintiff shared stories about herself, including where she was born and places she had lived. At the end of the ride, plaintiff again thanked Lt. McDermott.

         When the ride was over, Lt. McDermott wrote a memo about plaintiff's performance deficiencies. Lt. McDermott then discussed those deficiencies with District Commander Frank Valdez (“Commander Valdez”), and the two decided plaintiff should work with a Sergeant until she could receive additional training.

         In the meantime, on March 8, 2013, plaintiff registered a complaint (a “complaint register”) against Lt. McDermott in connection with the prior evening's ride along. Lt. McDermott did not learn of the complaint register until March 9, after she and Commander Valdez had already decided that plaintiff would ride with a Sergeant until she had more training.

         By March 11, 2013, plaintiff was on paid medical leave from work.[3] Plaintiff remains a police officer to this day, though her paid medical leave expired at the end of April 2014. She is now on unpaid leave.

         In early 2013, Lt. Lameka and Sgt. Shaun Fleischhacker wrote letters of recommendation on plaintiff's behalf in support of plaintiff's application for admission to the graduate program in Public Safety Administration at the Calumet College of St. Joseph.

         The CPD maintains an Equal Employment Opportunity Policy (“EEO Policy”). The EEO Policy expressly prohibits sexual harassment, discrimination based on sex and retaliation. The EEO Policy also defines and describes those terms, as well as explaining how to complain, should an employee feel that he or she is a victim of discrimination, harassment or retaliation. Specifically, the EEO Policy sets out that an employee can complain to a supervisor, the Independent Police Review Board, the Office of Legal Affairs or the Bureau of Internal Affairs. The City also maintains a “Violence in the Workplace” Policy that expresses the City's desire to provide a safe and healthy workplace. The Violence in the Workplace Policy also provides guidelines on preventing and reporting incidents of violence at work.

         Plaintiff has never filed a complaint register (“CR”), grievance or written complaint of any kind with CPD or her union about Sgt. Breimon's conduct toward her. Nor did ...


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