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Covington v. Johnson

United States District Court, S.D. Illinois

October 1, 2019




         This matter comes before the Court on the motions for summary judgment filed by defendants City of Murphysboro, Illinois (“City”) (Doc. 39), Chad Roberts (Doc. 40), and Ken Johnson (Doc. 41). Plaintiff Allison Covington has responded to the respective motions (Docs. 44, 45 & 46).

         I. Summary Judgment Standard

         Summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.

         The initial summary judgment burden of production is on the moving party to show the Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at trial, the moving party may satisfy its burden of production in one of two ways. It may present evidence that affirmatively negates an essential element of the non-moving party's case, see Fed. R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the non-moving party's case without actually submitting any evidence, see Fed. R. Civ. P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet its strict burden, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

         In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57; Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere existence of “some alleged factual dispute between the parties, ” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252.

         II. Facts

         Construing the evidence and drawing all reasonable inferences in Covington's favor, the evidence establishes the following relevant facts.

         Covington is a woman and suffers from attention deficit and hyperactivity disorder (“ADHD”), a condition for which she takes medication. She was diagnosed in 2012 who noted she had mild cognitive impairment. At that point, Covington had difficulty concentrating, thinking, and focusing, and those difficulties manifested themselves in her behavior. She began taking medication to control her symptoms and has continued through the present. On medication, she no longer has difficulty concentrating and no longer displays the symptoms she had been suffering before her diagnosis.

         On October 22, 2016, Covington began working as a probationary dispatcher-a telecommunicator, as the City calls it-for the Murphysboro Police Department (“MPD”). Defendant Roberts, a man, was the chief of police at that time. Defendant Johnson, a man, was the main telecommunicator assigned to train Covington. Telecommunicators Ashley Etherton and Katie Ehlers, both women, also trained Covington. Telecommunicator training was not a very formal process. There was no written training policy or protocol; generally, the trainers helped each trainee on an individual basis to teach them what they needed. The recommended training period for telecommunicator was eight weeks followed by a test, but the informal training process extended beyond that time.

         When Covington reported to work on her first day, she found a large picture of herself posted on the bulletin board. When she asked Johnson about it, he said that he had printed it from Covington's Facebook page and that he wanted to post it so all the police officers in the MPD could see “the cute dispatcher” that would be working with them. He also told her he was the reason she was hired and that he had recommended her because she looked better than the other applicant. Covington felt uncomfortable that he was showing her picture to other officers and took the photograph off the bulletin board. Covington spent the first week of her training observing other telecommunicators.

         Thereafter, Johnson's behavior toward Covington turned extremely unprofessional. In the first week of November 2016, Johnson commented to Covington that he could tell she wore thong underwear because he could not see underwear lines through her pants and that his wife did not wear thong underwear but he wished she would. Covington began wearing leggings underneath her pants so Johnson would not be able to tell what kind of underwear she was wearing. Around that time, Johnson also raised his shirt to show her his nipple rings. On another occasion he commented to Covington that he did not like the fabric of the underwear his wife wore. Around Christmas, Johnson searched for lingerie for his wife on the computer at work and asked whether Covington would wear certain items and whether her husband would like them. He also told Covington he would make his wife shower before having oral sex, and asked Covington if and how often she had oral sex with her husband. Covington was unable to remember any other specific, discrete instance of sexual harassment, although, except for about the second half of November when Covington was away at training or Johnson was on vacation, he talked about his wife and underwear a lot. It was common knowledge around the MPD, including by three sergeants and Roberts, that Johnson behaved inappropriately toward Covington, yet nothing was done about it.

         In addition to Johnson's sexual comments, shortly after she started the job, he began verbally abusing her almost every time he was with her by making fun of her, calling her belittling names like “idiot, ” “retarded, ” and “stupid, ” and sometimes making her cry. In addition, he would tell her to figure things out on her own.

         Johnson also seemed to want to intimidate Covington. He told her numerous times that his father was a judge in Jackson County, the county in which Murphysboro is located. Roberts also told Covington once about Johnson's father. Johnson told Covington he controlled whether she was retained as an employee. Covington was afraid of losing her job, so she tried to get along with Johnson, although she found his behavior offensive. In fact, Covington and Johnson exchanged friendly text messages when he was on vacation in mid-November.

         On December 3, 2016, Johnson saw Covington with her ADHD medicine and began calling her belittling names. Covington told Johnson that she had ADHD, and he responded that he could not train someone with ADHD. Indeed, after that, rather than training and communicating with Covington, Johnson instead smoked, kicked his feet up, played video games, and told her to figure things out for herself.

         Later in December, Covington reported Johnson twice to higher officers. She told MPD Lt. Mike Laughland about Johnson's underwear talk and the belittling names he called her and about her ADHD. Laughland told her to “[j]ust kind of deal with it” because “that's just the way [Johnson] is.” Covington Dep. 229:2-6 (Doc. 44-5).

         Around December 17, 2016, Covington also told MPD Sgt. Smelter about Johnson's sexual harassment and name-calling and her own ADHD. That discussion led to a meeting with Laughland and Roberts where she told them about Johnson's behavior, including his refusal to train her, and her ADHD. On December 21, 2016, they moved Covington to a later shift so she would not have to work in the hostile environment created by Johnson, under whose tutelage she had not made sufficient progress, but would instead train with Etherton, Ehlers, and Amelia Crain. After the move, Johnson turned petty, throwing out Covington's lunch and hiding her belongings. On one occasion Covington had to train under Johnson because of scheduling problems, and again he refused to look at or speak to her.

         Covington's training period was extended beyond the recommended eight weeks. Not surprisingly given Johnson's training methods, not all of Covington's training under Johnson had been completely effective, but she was making progress. In fact, now that Johnson was no longer responsible for training her, Covington was advancing well under Ehlers. There were some areas in which she needed improvement, but others in which she was able to complete the task with minimal assistance, comprehended and understood the task, or was able to complete the task without assistance.

         Johnson was not the only MPD employee who made Covington uncomfortable. On October 31, 2016, after a training drill away from the MPD station, Roberts drove Covington back to the station, and on the way he drove by his house saying he wanted to show her where he lived. He stopped the car in the driveway and told Covington about the inside of the house and that his wife had not yet been able to move there with him so he would be living alone for a while. The conversation made her uncomfortable because it could have been interpreted as suggesting they have a sexual encounter in the home while his wife was away.

         On another occasion, Covington fielded a call from a suicidal caller who called the MPD often. After Covington spoke with him for an extended period of time, Roberts told Covington the caller might stop calling if she “would stop having f***ing phone sex with him.” Additionally, Roberts refused to schedule CPR training for Covington, which prevented her from receiving a raise.

         Out of Covington's presence, Roberts and Johnson did some other questionable things. Roberts mimicked tickling his private parts to describe how his daughter was being taught to perform a swimming stroke, and Johnson told another female trainee she should wear lingerie for her first day at work and called her belittling names.

         Covington was scheduled to test on the Illinois police database system on January 17, 2017, but she was terminated before she could take the test. Despite never having received any complaints about her work and having received moderately positive job reviews with suggestions for improvement, Murphysboro Mayor Will Stevens terminated Covington's employment on January 17, 2017, at Laughland's and Roberts's recommendation. They cited negative marks in her reviews, her use of sick leave, and her difficulty remembering training when returning after several days off. Covington had not received the verbal warning, written warning, and suspension required by the collective bargaining agreement that governed her employment. Although Ehlers had earlier expressed some doubts about whether Covington would be able to do the job of telecommunicator, she was surprised by Covington's termination and thought she had not been given a legitimate chance to succeed. Sgt. Smelter thought she should have been given an opportunity to work longer with a telecommunicator other than Johnson.

         Covington points to the treatment of two other female telecommuters who were not terminated. Crain, a female telecommunicator trainee, was recommended for termination but was not fired. Another female telecommunicator, Heather Foley, was recommended for termination but was not fired. Foley had cashed a check from the City of Murphysboro that she had been asked to return, had used the MPD computers to obtain facts about a friend under investigation, had consumed alcohol on the job and then drove a squad car, and had fought with Etherton.

         On July 11, 2017, Covington filed a charge with the Equal Employment Opportunity Commission and the Illinois Department of Human Rights asserting sex discrimination, disability discrimination, and retaliation. She received a right to sue letter on February 12, 2018, and filed this lawsuit on May 7, 2018. In this suit she alleges the following claims:

Count I: claims against the City under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., for sex discrimination, hostile work environment, and retaliation;
Count II: claims against the City under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., for disability discrimination, hostile work environment, and retaliation;
Count III: claims against Johnson, Roberts, and the City under 42 U.S.C. § 1983 for violation of her Fourteenth Amendment Equal Protection rights through purposeful discrimination on the basis of gender and disability;
Count IV: claims against Johnson, Roberts, and the City under the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq., for disability discrimination and retaliation; and
Count V: claims against Johnson, Roberts, and the City under the IHRA for sexual harassment and retaliation.

         III. City's Motion for Summary Judgment (Doc. 39)

         The City asks the Court to grant summary judgment for it on all counts. The Court addresses each in turn.

         A. Disability Discrimination Claims: Counts II and IV

         The City seeks summary judgment on Covington's disability claims in Counts II and IV because she has insufficient evidence to prove she was actually disabled or regarded as disabled. Covington responds correctly that the City relies on law that predates the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008), which became effective in January 2009. The ADAAA substantially broadened the definition of disability from the standards courts had applied up to that time and rejected the precedents upon which the City's argument is based, namely, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), Toyota Motor Mfg, Ky., Inc. v. Williams, 534 U.S. 184 (2002), and their progeny. See 29 C.F.R. Pt. 1630, app. (Interpretive Guidance on Title I of the ADA; “The express ...

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