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July 12, 2010
DALIA SACRAMENTO, PLAINTIFF,v.CITY OF CHICAGO, A MUNICIPAL CORPORATION, AND LEONARD BISZEWSKI, INDIVIDUALLY AND AS AN AGENT OF CITY OF CHICAGO, DEFENDANTS.
Dalia Sacramento filed suit against the City of Chicago ("City") and Leonard Biszewski alleging sexual harassment (Count I), retaliation (Count II), and constructive discharge (Count III), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et. seq., as well as an Illinois state law claim for negligent retention (Count V) against the City.*fn1
Before the court is the City's motion for summary judgment on all four counts. For the following reasons, the City's motion [#83] is granted in part and denied in part.
Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Id. While the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986), where a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000).
Northern District of Illinois Local Rule 56.1(a) requires the party seeking summary judgment to submit, among other things, a statement of material facts, which consists of short, numbered paragraphs and specific references within each paragraph to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. N.D. Ill. L.R. 56.1(a)(3). The non-moving party must then submit a concise response to the movant's statement of facts. Id. Material facts improperly denied by the non-moving party are deemed admitted by the court. Id.
Sacramento was employed by the City from July 16, 1990 until her resignation on February 9, 2007. Beginning on December 16, 1999, she served as a Supervisor of Investigations in the Department of Revenue ("Department"),*fn3 where she reported directly to Director of Security Nicholas Giannoules. Giannoules reported to Assistant Director Sherri Cianciarulo, who in turn reported to Deputy Director Ron Calicchio. As a Supervisor of Investigations, Sacramento was in charge of a rotating team of investigators and so was not always in charge of the same individuals. Biszewski, a seventy-one-year-old Revenue Investigator II, was an investigator who worked in Sacramento's department.
I. Conduct and Complaints Prior to August 14, 2006
Beginning in 2005, Biszewski routinely called Sacramento "bonita," meaning "pretty" or "attractive" in Spanish, which she found "very inappropriate" because she was a "supervisor." Defendant City of Chicago's Local Rule 56.1(a)(3) Statement of Uncontested Material Facts ¶ 26, hereinafter "DSF ¶ ___." Sacramento would reply, "[T]hat's not my name" and "don't call me that." DSF ¶ 26. She also informed Giannoules that she did not like Biszewski calling her "bonita" and spoke to Biszewski about it herself.
Around October 2005, Biszewski attempted to hug Sacramento. Sacramento objected, telling Biszewski, "Don't touch me. That's considered sexual harassment." DSF ¶ 25. Giannoules witnessed the incident. Although Biszewski did not touch Sacramento, Sacramento complained to Giannoules about the attempted hug and told him that "if anything happened again [she] would file a sexual harassment [charge] against Lenny [Biszewski]." DSF ¶ 29. Under the City's Policy on Sexual Harassment, reporting harassment to one's immediate supervisor was an appropriate method of registering a complaint. The supervisor was then responsible for reporting the complaint to the City's Sexual Harassment Office ("SHO").
Giannoules did not do anything about the attempted hugging incident. According to Sacramento, this was because Giannoules did not consider Biszewski's actions to constitute sexual harassment.
This was not the only time Biszewski hugged or attempted to hug Sacramento prior to August 14, 2006, though Sacramento could not give specific dates of these other occurrences. Sacramento considered these hugs and attempted hugs to be "non-sexual in nature." DSF ¶ 27. Biszewski similarly hugged Giannoules and another female co-worker, who did not find the hugs to be sexual or violent in nature. Giannoules also did not consider it sexual or violent when, on one occasion, Biszewski kissed him on his forehead and playfully slapped his face.
Biszewski also displayed other behavior that could be considered inappropriate. In 2000, Biszewski made an inappropriate comment to a female co-worker, Hollis Stewart, over the intercom radio, when Stewart asked Biszewski "what's up" and he answered "woody." DSF ¶ 23. Sacramento claims "everybody could hear this over the air" since "all the radios are on." DSF ¶ 23. Stewart reported the incident to Giannoules, who verbally reprimanded Biszewski. Additionally, sometime before 2006, Biszewski displayed a sexually explicit cardboard cut-out of a woman in a bikini in his cubicle, which Sacramento found inappropriate. Still, Sacramento did not complain to her supervisors or order Biszewski to remove it, although a former deputy director eventually instructed him to take it down.
II. Incident on August 14, 2006
On August 14, 2006, as Sacramento exited mandatory ethics training with co-worker Constantine Apostolos, Biszewski approached Sacramento and slapped her four times across her cheeks with the front and back of his hand. Sacramento described the act as a "three stooges" type of slap, DSF ¶ 35, and said that it stung. Biszewski then hugged Sacramento tightly in a bear hug, where his arms encircled her, his chest pressed tightly against her breasts, and she could not move her arms. Sacramento asked Biszewski to let her go, but he did not do so until "several seconds" later when Giannoules, who was nearby, instructed him to "let her go." DSF ¶ 36.
III. Sacramento's Formal Complaint and the City's Response
Although Sacramento did not sustain any physical injury from the contact or seek medical attention, she was upset about Biszewski's behavior and called Giannoules immediately after the incident to inform him that she wanted to "file charges" against Biszewski. DSF ¶ 38. After receiving Sacramento's call, Giannoules immediately contacted his supervisors, Cianciarulo and Calicchio, to inform them of Sacramento's request. Cianciarulo sent her request up the chain of command, and, within two weeks, the City initiated its investigation. SHO had Sacramento sign a formal complaint, interviewed Sacramento, Biszewski, and six other witnesses, including Giannoules and Apostolos, and worked with the City's Violence in the Workplace Coordinator, Robert Keller, to obtain written statements from the witnesses.
After reviewing the statements on December 20, 2006, SHO issued a report that found that Biszewski had violated the City's Policy on Sexual Harassment and Violence in the Workplace Policy and recommended that Biszewski serve a thirty-day unpaid suspension. Pursuant to the City's Personnel Rules and the applicable collective bargaining agreement, this was the most severe discipline the City could impose on Biszewski short of termination. Since Biszewski belonged to a union, however, the discipline could not be imposed until after a pre-disciplinary hearing and after Biszewski exhausted his contract rights. Biszewski eventually served his thirty-day suspension in February 2007.
In the months between the August 14, 2006 incident and Biszewski's thirty-day suspension, Sacramento had no further interaction with Biszewski. The Department instructed Biszewski not to use Sacramento as a direct or default supervisor or have any contact with her. In October 2006, however, a previously set rotation moved Sacramento and her team from the 12:00 p.m. to 8:00 p.m. afternoon shift to the 8:00 a.m. to 4:00 p.m. day shift, the same shift Biszewski worked. Investigators were normally required to come into the office at the beginning of the shift and leave to work in the field no more than an hour and a half after the shift started. The City claims investigators typically ended their days in the field and did not return to the office, although Sacramento disputes this and notes they sometimes spent entire days within the office. Even though Sacramento was not supervising Biszewski following the schedule change, she still requested that he be moved to the afternoon shift. The City did not fulfill Sacramento's request. Giannoules testified that Calicchio chose not to take any action until after the City completed its investigation of Biszewski, stating that he was "innocent until proven guilty." Plaintiff's Response to Defendant's Local Rule 56 Statement & Statement of Additional Material Facts ¶ 14, hereinafter "PSF ¶ ___."
From October 1 to October 16, Sacramento and Biszewski were present in the office at the same time for around two hours per day. During this time, Sacramento closed herself exclusively within her office and had co-workers advise her of Biszewski's whereabouts. Sacramento also kept her office door closed when Biszewski was not in the office, however, because she was "upset with management." DSF ¶ 52.
IV. Discipline and Resignation
On October 3, 2006, Giannoules tried to mediate a work-related dispute between Sacramento and a fellow supervisor. Following this meeting, Sacramento became angry and swore at Giannoules. Although the City discussed the possibility of disciplining Sacramento for swearing at her supervisor, no discipline was ever issued. Additionally, on October 6, 2006 at 10:03 a.m., Sacramento emailed Cianciarulo that she was leaving for the day, despite department procedures requiring that she request this type of leave in person. While Cianciarulo verbally counseled Sacramento about her early departure, verbal counseling was not recorded in Sacramento's disciplinary record and did not involve any loss of pay. It was also not considered discipline under the City's Personnel Rules.
On October 16, 2006, Sacramento took a scheduled vacation, followed by a medical leave, and never returned to work for the City. On February 9, 2007, she visited the Commissioner of the Department and submitted a resignation letter.*fn4 Cianciarulo testified that the disciplinary process for Sacramento's profanity incident would have begun had she returned to work.
On March 1, 2007, Sacramento filed a charge with the Illinois Department of Human Rights, which was cross-filed with the Equal Employment Opportunity Commission, alleging sex discrimination and retaliation. Sacramento then filed her Amended Complaint against the City and Biszewski on December 4, 2007, alleging sexual harassment, retaliation, and constructive discharge, in violation of Title VII, as well as an Illinois state law claim for negligent retention against the City.
Before reaching the merits of the City's motion for summary judgment, the court will address certain deficiencies in Sacramento's response to the City's Rule 56.1 Statement of Uncontested Material Facts. The court agrees with the City that Sacramento's responses to ¶¶ 14, 19, 21, 22, 23, 24, 25, 29, 31, 32, 35, 36, 37, 38, 39, 44, 46, 47, 49, 57, 58, 61, and 62 are improper because they are not supported with citations to the record, are argumentative, or are narrative admissions. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006)(explaining that it is inappropriate to make legal arguments in Rule 56.1 statements and responses); Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817--18 (7th Cir. 2004) ("Citations to an entire transcript of a deposition or to a lengthy exhibit are not specific and are, accordingly, inappropriate."); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("[A] mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material."). Because the court is entitled to expect strict compliance with Local Rule 56.1 procedures, Ammons, 368 F.3d at 817, it deems these paragraphs admitted. See Smith, 321 F.3d at 683 (ruling that the district court acted within its discretion when it deemed defendant's statement of facts admitted because the plaintiff failed to support controverted or additional facts with citations to admitted evidence); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994) (ruling that the district court acted within its discretion in granting summary judgment to defendant based on plaintiff's failure to comply with Local Rule 56.1). Additionally, the court strikes Sacramento's responses to ¶¶ 21, 24, 26, 28, 48, 51, 52, 55, 56, and 59 since they improperly assert additional facts that should be included in Sacramento's separate statement. Ammons, 368 F.3d at 817 (ruling that the non-moving party should place additional facts in a separate statement, not in his responses to a moving party's statement); Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) ("Rule 56.1(b)(3)(B) 'provides the only acceptable means of... presenting additional facts.'" (quoting Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995))).
The court also agrees with the City that ¶¶ 1, 2, 3, 4, 5, 6, 7, 9, the first sentence of 11, 12, 15, 16, 18, 20, and 24 of Sacramento's Statement of Additional Material Facts should be stricken since they allege conclusional facts that are not supported by the record, are improperly cited to the record, or are based on hearsay. Malec, 191 F.R.D. at 583 ("[C]itations must include page (or paragraph) numbers...."); Buttron v. Sheehan, No. 00 C 4451, 2003 WL 21801222, at *4 (N.D. Ill. Aug. 4, 2003) (hearsay evidence and allegations of conduct that did not affect plaintiff are improper to show a genuine issue of material fact). Additionally, the court strikes ¶¶ 11, 13, 16, 17, and 25, which do not concisely allege individual facts. L.R. 56.1(b)(3)(C); Malec, 191 F.R.D. at 583 ("[Paragraphs] should contain only one or two individual allegations, thereby allowing easy response.").
I. Sexual Harassment
Sacramento first alleges that Biszewski's harassing conduct prior to and on August 14, 2006 created a hostile work environment. To establish a prima facie case of sexual harassment under Title VII, Sacramento must show that (1) "she was subjected to unwelcome harassment," (2) "the harassment was based on her sex," (3) "the harassment was sufficiently severe or pervasive so as to alter the condition of her employment and create a hostile or abusive atmosphere," and (4) "there is a basis for employer liability." Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007). The City argues that Sacramento has failed to establish the second, third, and fourth elements of her claim.
A. Harassment Because of Sex
The City argues that Biszewski's harassment was not based on Sacramento's sex, as he engaged in similar conduct with males as well. "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discriminat[ion]... because of... sex.'" Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed. 2d 201 (1998) (alterations in original); see also Berry v. Delta Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001) ("Inappropriate conduct that is 'inflicted regardless of sex [ ] is outside the statute's ambit,' and an employer cannot be held liable for creating or condoning a hostile working environment unless the hostility is motivated by gender." (citations omitted) (alteration in original)). Thus, "[t]he critical issue... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the opposite sex are not exposed." Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed. 2d 295 (1993) (Ginsburg, J., concurring)) (internal quotation marks omitted)).
An issue exists as to whether Biszewski's alleged actions toward Sacramento -- hugs and attempted hugs, calling her "bonita," and other comments -- were motivated by Sacramento's gender or whether he was an "equal opportunity harasser." See Holman v. Indiana, 211 F.3d 399, 403--04 (7th Cir. 2000). Giannoules, Sacramento's male supervisor, testified that Biszewski had also kissed him on his forehead, hugged him, and playfully slapped his face on one occasion.He testified further that Biszewski had hugged other male and female employees in the office. Thus, the record suggests that Biszewski did not discriminate in terms of whom he hugged or slapped.
Biszewski's other alleged conduct, however, at least raises a genuine issue of material fact as to whether it was based on Sacramento's gender. Calling Sacramento "bonita," a Spanish word for "pretty" or "attractive," seems gender-based since there is no evidence in the record that Biszewski called male employees similar names. Additionally, the August 14, 2006 incident, during which Biszewski hugged Sacramento tightly in a bear hug, pressed his chest tightly against her breasts, and restricted her ability to move her arms, can be perceived as having sexual overtones. Further, considering Biszewski's prior sexual comment to Stewart over the intercom and the cardboard cut-out of a bikini-clad woman he displayed in his cubicle, a reasonable jury could find that Biszewski's alleged harassment of Sacramento was motivated by her gender. See Kampmier, 472 F.3d at 940--41 (although both sexes were harassed, harassment of females was more severe and prevalent than that of males, precluding grant of summary judgment).
B. Severe or Pervasive Harassment
The City next argues that Biszewski's actions were not sufficiently severe or pervasive to create a hostile work environment. A hostile work environment exists when an employee is subject to conduct that is both objectively and subjectively offensive. Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 505 (7th Cir. 2004). Sacramento "must subjectively believe that the harassment was sufficiently severe or pervasive to have altered the working environment, and the harassment must also be sufficiently severe or pervasive, from the standpoint of a reasonable person, to create a hostile work environment." Turner v. The Saloon, Ltd., 595 F.3d 679, 685 (7th Cir. 2010).
1. Subjectively Offensive Conduct
Enough evidence exists to suggest that Sacramento subjectively perceived Biszewski's conduct to be sufficiently severe or pervasive to alter her work environment. Even prior to the August 14, 2006 incident, after which Sacramento filed her formal harassment complaint, Sacramento had made it clear to Biszewski that she found his behavior inappropriate. Sacramento told Biszewski, "Don't touch me. That's considered sexual harassment," DSF ¶ 25, when he attempted to hug her in or around October 2005 and informed Giannoules that she would file a sexual harassment complaint the next time similar behavior occurred. She had also notified both Biszewski and Giannoules that she did not like it when Biszewski called her "bonita." DSF ¶¶ 26, 31. While Sacramento considered Biszewski's prior hugs and attempted hugs to be "non-sexual in nature," DSF ¶ 27, her comments conceivably indicate that she found his conduct as a whole to have altered her work environment. Thus, sufficient evidence exists for a jury to conclude that Sacramento found the harassment subjectively offensive.
2. Objectively Offensive Conduct
At a minimum, a dispute exists as to whether Biszewski's actions amount to objectively offensive conduct. In determining whether a reasonable person would find Sacramento's work environment abusive or hostile, the court considers the totality of circumstances, including "the frequency of the conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the alleged victim's work performance." Kampmier, 472 F.3d at 941 (citing Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806--07 (7th Cir. 2000)). "Sexual harassment serious enough to constitute unlawful discrimination on grounds of sex is often a cumulative process rather than a one-time event," Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed. 2d 106 (2002), and the "very nature" of a hostile environment claim "involves repeated conduct." Morgan, 536 U.S. at 115. The court will thus address Biszewski's conduct prior to August 14, 2006 and the August 14, 2006 incident concurrently.
The Seventh Circuit recently emphasized the significance of "whether there was inappropriate touching" in determining whether conduct is objectively offensive. Turner, 595 F.3d at 685--86 (citing Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) (finding harassment more severe when "conduct... involves touching as opposed to verbal behavior")). Harassment that involves direct contact with an intimate body part is considered especially severe. Turner, 595 F.3d at 686 (citing Worth, 276 F.3d at 268). On August 14, 2006, Sacramento claims Biszewski slapped her across the face four times, which stung, and hugged her tightly in a bear hug so that his chest pressed tightly against her breasts and she could not move her arms.An "intentional physical intrusion in such close proximity to the most intimate areas of a person's body" is not "the sort of middle-of-the-continuum physical contact we have held insufficient in isolation to constitute a hostile environment." Patton v. Keystone RV Co., 455 F.3d 812, 817 (7th Cir. 2006)(placing hand under the plaintiff's shorts on her inner thigh and touching her underwear was sufficiently severe to alter the plaintiff's work environment); see also Worth, 276 F.3d at 268 (single act of touching the plaintiff's "breast near the nipple for several seconds" found sufficiently severe to establish a hostile environment); cf. Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998) ("[T]he most serious misconduct, the unwanted touching of Adusumilli's buttocks, took the relatively mild form of a poke and occurred only once."); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (harassment was not sufficiently severe or pervasive when supervisor repeatedly placed his hand on plaintiff's shoulder, attempted to kiss her, asked her out on dates, called her "dumb blond," and left "I love you" signs in her workspace).
While "[c]asual contact that might be expected among friends--'[a] hand on the shoulder, a brief hug, or a peck on the cheek'--would normally be unlikely to create a hostile environment," the same contact may be viewed differently when there are "'aggravating circumstances such as continued contact after an objection.'" Patton, 455 F.3d at 817 (second alteration in original) (quoting Hostetler, 218 F.3d at 808). These "factual nuances" from the incident itself become particularly significant. Id. at 816. Although Sacramento verbally objected to Biszewski's bear hug and asked him to let her go, he did not do so until several seconds later when Giannoules ordered him to do so. Thus, one could conclude that Biszewski's bear hug went beyond what is acceptable for a casual hug. See id. at 817 (observing that the co-worker in Hostetler "'did not simply steal a quick kiss from [the plaintiff's] lips, but, holding her face in his hands, forced his tongue into her mouth'" (alteration in original) (quoting Hostetler, 218 F.3d at 809)). The hug can be viewed as having invaded an intimate part of Sacramento's body, her breasts, and the fact that it "lasted for several seconds also increases its severity." Worth, 276 F.3d at 268. Even if one assumes that some chest-to-chest contact is a natural consequence of hugging, Sacramento testified that Biszewski embraced her so tightly that she could not move her arms and maintained contact with her even after she verbally objected to it.
Biszewski's prior conduct and the fact that Sacramento had explicitly warned him not to act this way further aggravate the issue. After a previous attempted hug in or around October 2005, Sacramento had told Biszewski, "Don't touch me. That's considered sexual harassment," DSF ¶ 25, and also complained to Giannoules about the incident. Similarly, Sacramento had objected to Biszewski calling her "bonita," telling Biszewski "that's not my name" and "don't call me that." DSF ¶ 26. Calling Sacramento "bonita" alone would not be considered objectively offensive. Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005) (use of vulgar language, in plaintiff's presence and directed at her, in addition to isolated comments about older women in the workplace and yelling at the plaintiff, was not enough to establish an objectively offensive work environment). Combined with Biszewski's hugs and attempted hugs, however, one could find that this name-calling contributed to an objectively offensive environment.
Additionally, while Biszewski's cardboard cut-out of a bikini-clad female and inappropriate comment to another female co-worker constitute "second-hand harassment" that has less of an impact than harassment directed at Sacramento, these incidents are still relevant to Sacramento's claim. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir. 1997). Thus, construing all facts most favorably to Sacramento, there is at least a genuine issue of material fact as to the objective severity or pervasiveness of Biszewski's conduct.
C. Employer Liability
The City also argues that there is no basis for employer liability since it took prompt corrective action after Sacramento filed her sexual harassment complaint. "Title VII is not a strict liability statute." Porter v. Erie Foods Int'l, Inc., 576 F.3d 629, 636 (7th Cir. 2009). When a plaintiff "claims co-workers alone were responsible for creating a hostile work environment, [s]he must show that [her] employer has been negligent either in discovering or remedying the harassment." Id. (quoting Williams v. Waste Mgmt. of Ill., Inc., 361 F.3d 1021, 1029 (7th Cir. 2004)) (internal quotation marks omitted). Thus, "the employer can avoid liability for co-worker harassment 'if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.'" Id. (quoting Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000)). The City did take prompt, effective action in October 2006 after Sacramento formally filed her harassment charge. See Lapka v. Chertoff, 517 F.3d 974, 985 (7th Cir. 2008) ("[T]aking effective steps to physically separate employees and limit contact between them can make it 'distinctly improbable' that there will be further harassment."). It is unclear, however, whether Giannoules had sufficient knowledge of a probability that Biszewski was harassing Sacramento in 2005, thus potentially making the City liable for not having taken action sooner.
Since "notice or knowledge of the harassment is a prerequisite for liability," Sacramento must establish that "she gave [her] employer enough information to make a reasonable employer think there was some probability that she was being sexually harassed." Hall v. Bodine Elec. Co., 276 F.3d 345, 356 (7th Cir. 2001) (quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1035 (7th Cir. 1998)) (internal quotation marks omitted). To establish whether the City had notice that Biszewski was harassing Sacramento, the court must "first determine whether the employer has designated a channel for complaints of harassment." Parkins, 163 F.3d at 1035. The City's Policy on Sexual Harassment provided an effective channel for employees to report harassment complaints and made reporting harassment to one's immediate supervisor an appropriate method. Hall, 276 F.3d at 356 ("Where an employer designates a point person to accept complaints, this person becomes the natural channel for the making and forwarding of complaints, and complainants can be expected to utilize it in the normal case." (citation omitted) (internal quotation marks omitted)). The supervisor then became responsible for reporting the employee's complaint to SHO.
In or around October 2005, Sacramento complained to Giannoules about Biszewski's attempt to hug her and told him that "if anything happened again [she] would file a sexual harassment [charge] against Lenny [Biszewski]." DSF ¶ 29; see Porter, 576 F.3d at 637--38 (holding a plaintiff has "a duty to reasonably 'avail [herself] of the employer's preventive or remedial apparatus'" (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed. 2d 662 (1998))). Whether Sacramento's statement to Giannoules amounted to a complaint requiring further action is disputed. Giannoules did not make a report to SHO because, according to Sacramento, he did not consider Biszewski's actions to constitute sexual harassment. Giannoules also witnessed the attempted hug in October 2005, which a jury could find gave him additional notice of a probability that Biszewski was harassing Sacramento. See Sanders v. Mid City Salon Res., LLC, No. 06 C 3971, 2008 WL 244292, at *8 (N.D. Ill. Jan. 23, 2008) (jury could find that engaging in alleged harassing conduct on a daily basis in front of supervisors put employer on notice of conduct).
Assuming these facts are true, one could conclude that Giannoules had sufficient notice of Biszewski's alleged harassment in 2005, particularly his proclivity to hug Sacramento, requiring him to take further action. See Johnson v. City of Marseilles, No. 06 CV 0955, 2008 WL 94803, at *5 (N.D. Ill. Jan. 8, 2008) (employer had actual notice of harassment when plaintiff complained of being sexually harassed and supervisor was aware of her complaint and the alleged conduct itself). Giannoules's inaction could be found to have led to, or at least failed to prevent, the more severe hugging and slapping incident on August 14, 2006. See Lapka, 517 F.3d at 984 ("The emphasis is on the prevention of future harassment."). Alternatively, the City could be found to have done all it needed to if a jury concludes that the City was not on sufficient notice of Biszewski's actions until after the August 14, 2006 incident. Thus, a genuine dispute exists, precluding a grant of summary judgment on Sacramento's sexual harassment claim.
II. Retaliation
Sacramento also claims the City retaliated against her for filing her sexual harassment complaint. To establish a prima facie case of retaliation under Title VII, Sacramento may use either the direct or indirect method. Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th Cir. 2008). Under the direct method, Sacramento must present evidence of "(1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two." Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 858 (7th Cir. 2008). Under the indirect method, Sacramento must prove that she "(1) engaged in a statutorily protected activity; (2) met her employer's legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than similarly situated employees who did not engage in statutorily protected activity." Id. at 859. While Sacramento proceeds under both methods, the court need not address them separately since Sacramento has failed to show that she suffered a materially adverse employment action, a requirement of both.
Title VII's anti-retaliation provision covers only "employer actions that would have been materially adverse to a reasonable employee," meaning that "the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 68, 126 S.Ct. 2405, 165 L.Ed. 2d 345 (2006) ("We speak of material adversity because we believe it is important to separate significant from trivial harms."). Examples might include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Lapka, 517 F.3d at 986 (citation omitted) (internal quotation marks omitted); see also O'Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004) ("While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action." (citation omitted) (internal quotation marks omitted)).
In support of her claim, Sacramento argues that the City retaliated against her when she was told she might be disciplined for using profanity toward her supervisor, received verbal counseling for leaving early from work, and was constructively discharged. For reasons set forth below, the court finds that Sacramento was not constructively discharged and thus will only address her allegations of possible discipline for using profanity and verbal counseling.
While Giannoules discussed the possibility of disciplining Sacramento after an incident where she became angry and used profanity toward him, no discipline was ever issued. "An unfulfilled threat, which results in no material harm, is not materially adverse." Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 531 (7th Cir. 2003); see also Nagle v. Village of Calumet Park, 554 F.3d 1106, 1121 (7th Cir. 2009) (discussion of a suspension that was never actually served was not a materially adverse action). Similarly, Sacramento did not suffer a materially adverse action when she received verbal counseling from Cianciarulo for leaving work early without following department procedures. While the Seventh Circuit has "declined to rule categorically that warnings cannot be adverse actions," Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 849 (7th Cir. 2007), the alleged verbal counseling hardly amounts to a warning, given that it was not recorded in Sacramento's disciplinary record, involved no loss of pay, and was not considered discipline under the City's Personnel Rules. See Lapka, 517 F.3d at 986 ("[L]ower performance ratings are not actionable unless they are accompanied by tangible job consequences."); cf. Pantoja, 495 F.3d at 849 (numerous warnings filed in plaintiff's record could be found materially adverse). In short, receiving verbal counseling about department procedures for leaving work early would not have dissuaded a reasonable employee from making a charge of discrimination. See Rhodes, 359 F.3d at 504 ("A materially adverse employment action is something 'more disruptive than a mere inconvenience....'" (quoting Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993))). Accordingly, Sacramento cannot establish a critical element of her retaliation claim and the City's motion for summary judgment will be granted.
III. Constructive Discharge
Sacramento also alleges that she was constructively discharged when the City forced her to work the same shift as Biszewski after the August 14, 2006 incident, discussed possibly disciplining her for the profanity incident, and verbally counseled her for leaving work early. Constructive discharge claims are difficult to prove because they require that an employee's work conditions be "even more egregious than the high standard for hostile work environment." McPherson v. City of Waukegan, 379 F.3d 430, 440 (7th Cir. 2004) (quoting Robinson v. Sappington, 351 F.3d 317, 336 (7th Cir. 2003)) (internal quotation marks omitted). Since "an employee is expected to remain employed while seeking redress," id., Sacramento "must show that her working conditions were 'so intolerable that a reasonable person would have felt compelled to resign.'" Patton, 455 F.3d at 818 (quoting Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed. 2d 204 (2004)). While the Seventh Circuit has not recognized a specific benchmark, working conditions are considered to be so intolerable when, for example, "it becomes reasonable to fear serious physical harm." Id.
While Sacramento has provided sufficient evidence to survive summary judgment on her hostile work environment claim, her allegations do not amount to constructive discharge. See Witte v. Wisc. Dep't of Corr., 434 F.3d 1031, 1035--36 (7th Cir. 2006) ("[A]bsent extraordinary circumstances, an employee is expected to remain employed while seeking redress."). Although Biszewski's conduct on August 14, 2006 seriously troubled Sacramento, his continued presence in the office alone would not have caused a reasonable employee to "fear serious physical harm" or feel compelled to resign from her job. Patton, 455 F.3d at 818; cf. Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992) (constructive discharge where pistol held to plaintiff's head); Brooms v. Regal Tube Co., 881 F.2d 412, 417, 423 (7th Cir. 1989) (constructive discharge where co-worker grabbed plaintiff and threatened to kill her), overruled on other grounds by Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533--34 (7th Cir. 1993).
Between October 1 and October 16, Biszewski and Sacramento typically spent a maximum of two hours per day in the office together, and even then Sacramento remained exclusively in her office with the door closed. While Sacramento contends that she stayed in her office to hide from Biszewski, she also admits that she did so because she was "upset with management." DSF ¶ 52. Further, for reasons set forth above, the City's discussion of possibly disciplining Sacramento for the profanity incident and verbally counseling her about leaving work early are not materially adverse actions and thus have no bearing on her constructive discharge claim.
Sacramento also cannot support her contention that the City's failure to appropriately act after she filed her harassment charge compelled her to resign. See Porter, 576 F.3d at 640 ("[I]n determining whether a plaintiff may recover for a constructive discharge, we also must assess the employer's response to that conduct."). Following the August 14, 2006 incident, the City effectively cut off all interaction between Sacramento and Biszewski, instructing Biszewski not to use Sacramento as a supervisor or have any contact with her. Although the City denied Sacramento's request to move Biszewski to a different shift from hers, it is unclear that this would have actually reduced the amount of overlapping time Sacramento and Biszewski spent in the office, since their schedules would have still coincided for up to two hours per day. Thus, the court cannot find a dispute regarding the adequacy of the City's response to Sacramento's harassment charge. Id. at 639--40 ("[T]he constructive discharge test sets a high bar in order to give an employer an opportunity to address the situation before an employee resigns.").
Accordingly, the court finds that Sacramento's decision to not return to work after taking a scheduled vacation and medical leave was voluntary and grants the City's motion for summary judgment.*fn5
IV. Negligent Retention
Sacramento lastly alleges that the City negligently retained Biszewski after becoming aware of his harassing conduct. She claims that the City should have acted to prevent the August 14, 2006 incident since she complained about Biszewski's attempted hugs and unwelcome statements in 2005. "Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons." Van Horne v. Muller, 705 N.E.2d 898, 904, 185 Ill. 2d 299, 235 Ill. Dec. 715 (1998). To prevail on her negligent retention claim, Sacramento must prove "(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's... retention; and (3) that this particular unfitness proximately caused the plaintiff's injury." Id. (citations omitted).
The City argues, however, that the Illinois Workers' Compensation Act ("IWCA"), 820 Ill. Comp. Stat. 305/1 et seq., preempts Sacramento's negligent retention claim altogether. Since Sacramento's claim involves two intentional torts, assault and battery, the IWCA's exclusivity provision bars Sacramento from suing her employer unless she can establish "(1) that the injury was not accidental; (2) that the injury did not arise from... her employment; (3) that the injury was not received during the course of employment; or (4) that the injury was not compensable under the Act." Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222, 1226, 139 Ill. 2d 455, 151 Ill. Dec. 560 (1990) (citing Collier v. Wagner Castings Co., 408 N.E.2d 198, 202, 81 Ill. 2d 229, 41 Ill. Dec. 776 (1980)).
The only exception at issue is whether Sacramento's injury was accidental. "In the case of a co-worker's assault, the resulting injury is not accidental if the plaintiff can show that the employer or an alter-ego of the employer intentionally inflicted, commanded, or expressly authorized the tortious act committed by the co-worker." Walker v. Doctors Hosp. of Hyde Park, 110 F. Supp. 2d 704, 714 (N.D. Ill. 2000) (emphasis added). Thus, the only way Sacramento can prevail on her claim is if she establishes that the City had "a specific intent to injure [her] through the acts of [Biszewski]." Id. (citing Naszke v. Fed. Express Corp., No. 94 C 6084, 1996 WL 450832, at *6 (N.D. Ill. Aug. 6, 1996)). Nothing in the record shows this to be the case. The fact that Giannoules knew about Biszewski's conduct toward her does not imply that the City intentionally inflicted, commanded, or expressly authorized Biszewki's alleged assault or battery. See Fortenberry v. United Air Lines, No. 96 C 3198, 1997 WL 457499, at *5 (N.D. Ill. Aug. 7, 1997) ("United cannot be said to have specifically commanded or expressly authorized the intentional torts of co-workers simply because it knew or should have known that McRoberts was harassing Fortenberry."). Further, Biszewski was not acting as the City's alter-ego at the time he hugged and slapped Sacramento, given that he was a low-level employee who had no supervisory responsibilities. See Crissman v. Healthco Int'l Inc., No. 89 C 8298, 1992 WL 223820, at *6 (N.D. Ill. Sept. 2, 1992). Thus, Sacramento cannot establish that her injury was not accidental as defined by the IWCA, and her claim for negligent retention is preempted. The City's motion for summary judgment on this claim will be granted.
For the foregoing reasons, the City's motion for summary judgment [#83] is granted with respect to Sacramento's retaliation, constructive discharge, and negligent retention claims and denied with respect to her sexual harassment claim. This case will be called for a status hearing on August 10, 2010 at 8:30 a.m. The parties are instructed to engage in a sincere effort to resolve this litigation and to report on these efforts at the status hearing.
JOAN HUMPHREY LEFKOW United States District Judge
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decided: November 26, 1973.
COMMONWEALTHv.JOHNSON, APPELLANT
Appeal from order of Superior Court, Oct. T., 1971, No. 873, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1965, No. 1025, in case of Commonwealth of Pennsylvania v. James Johnson.
Anne Johnson and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
[ 454 Pa. Page 276]
We granted allocatur solely to consider appellant's claim that Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), announced a new right which entitles him to relief. We conclude that Hicks effected no transformation in Pennsylvania law and that the Superior Court correctly articulated the legal principles governing stops and frisks.
Appellant, James Johnson, was convicted in 1966 of burglary, larceny, and receiving stolen goods. The Superior Court affirmed without opinion, Commonwealth v. Johnson, 209 Pa. Superior Ct. 755, 229 A.2d 12 (1967), and no further appeal was taken. In 1968 appellant commenced this PCHA action.*fn1 The issue, the propriety of appellant's detention and arrest, was presented to the PCHA court as a question of law. Relief was denied and the Superior Court affirmed in an opinionless per curiam order. Commonwealth v. Johnson, 220 Pa. Superior Ct. 381, 286 A.2d 400 (1971) (Hoffman, J., filed a dissenting opinion in which Spaulding, J., joined).
[ 454 Pa. Page 277]
In a post conviction proceeding a petitioner may raise, inter alia, any issue entitling him to relief if he proves abridgement of "a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right . . . ." Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 3(c)(12), 19 P.S. § 1180-3(c)(12) (Supp. 1973). Appellant maintains that Commonwealth v. Hicks represents a change in the law of this Commonwealth and recognizes a new constitutional right. We cannot agree. A careful review of this Court's Hicks opinion*fn2 and that of the Superior Court*fn3 reveals that no change in the law resulted from our reversal of the Superior Court's order. The legal standard applied by this Court in 1969 and the Superior Court in 1966 was the same. The difference in result was solely due to the application of that test to the facts.
Hicks was stopped by an officer who had received a report of burglary and a description of the burglar. At the time of the stop Hicks, who did not fit the description, was five blocks from the scene of the crime. A frisk produced a penknife with a three inch blade. Hicks was arrested, charged with burglary, and subsequently convicted.
Affirming Hick's conviction, the Superior Court*fn4 acknowledged that Pennsylvania law permits a thorough search only incident to an arrest made upon probable cause, Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S. Ct.
[ 454 Pa. Page 278204]
(1963), but allows a stop for questioning, short of arrest, upon reasonable belief that the suspect has committed a crime. "In justifying the policeman's right to question and detain it is the reasonableness of the officer's suspicion that is determinative . . . ." Commonwealth v. Hicks, 209 Pa. Superior Ct. 1, 6, 223 A.2d 873, 876 (1966). Moreover, the Superior Court reasoned that a frisk following a stop was justified if based on the officer's personal regard for safety. Id. Our Superior Court expressly adopted the reasoning of State v. Terry, 5 Ohio App. 2d 122, 214 N.E.2d 114 (1966), aff'd, 392 U.S. 1, 88 S. Ct. 1868 (1968), and United States v. Thomas, 250 F. Supp. 771 (S.D.N.Y. (1966)).
In reversing the Superior Court, we did not disagree with that court's articulation of the Pennsylvania law of stop and frisk. We merely differed as to the application of that law to the particular facts. Indeed, the test used by this Court in Hicks was identical to that employed by the Superior Court.*fn5 "[E]ven if probable cause to arrest is absent, the police officer may still legitimately seize a person, such as Hicks was seized in this case, and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous." 434 Pa. at 158-59, 253 A.2d at 279 (footnote omitted).
[ 454 Pa. Page 279]
That our decision in Commonwealth v. Hicks represents simply an application of existing law cannot be denied. It is clear that no new right was there recognized. In the absence of a newly-declared constitutional right, appellant may not relitigate the constitutionality of his stop and frisk. PCHA, §§ 3(c)(12), (d), 19 P.S. §§ 1180-3(c)(12), (d).
Order affirmed.
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February 18, 2009
BRETT, N., A MINOR, BY SHELDON NAGELBERG, HIS FATHER AND NEXT BEST FRIEND, PLAINTIFF,v.COMMUNITY UNIT SCHOOL DISTRICT NO. 303, BOARD OF EDUCATION OF DISTRICT 303, KATHLEEN T. HEWELL, IN HER INDIVIDUAL CAPACITY, JAMES GAFFNEY, JR., IN HIS INDIVIDUAL CAPACITY, SCOTT NOWLING, IN HIS INDIVIDUAL CAPACITY, JAMES CHIMENTI, IN HIS INDIVIDUAL CAPACITY, ROBERT LINDAHL, IN HIS INDIVIDUAL CAPACITY, LORI LINKIMER, IN HER INDIVIDUAL CAPACITY, KARLA RAY, IN HER INDIVIDUAL CAPACITY, DONALD SCHLOMANN, IN HIS INDIVIDUAL CAPACITY, RONALD KNAPIK, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, JOHN KNEWITZ, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, LISA HAYMOND, IN HER OFFICIAL AND INDIVIDUAL CAPACITY, AND SHAWN BURKE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS.
Plaintiff, Sheldon B. Nagelberg, brought suit in Illinois state court on behalf of his son, Brett N. ("Brett"), against defendants Community School District No. 303 ("District 303"), the Board of Education of District 303 (the "Board"), in their individual capacities, Kathleen T. Hewell, James Gaffney, Jr., Scott Nowling, James Chimenti, Robert Lindahl, Lori Linkimer, Karla Ray, Donald Schlomann, and in their official and individual capacities, Ronald Knapik, John Baird, John Knewitz, Lisa Haymond, and Shawn Burke, seeking declaratory judgment, administrative review, and a petition for writ of certiorari. Defendants removed the case to this court based on federal question jurisdiction. 28 U.S.C. § 1331.
In his first amended complaint plaintiff alleges that enforcement of the Board's disciplinary policy prohibiting self-defense violated Brett's constitutional right to bodily integrity as implied within the Second Amendment and under the Equal Protection and Due Process Clauses of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 (Count I) and his protected "Inherent and Inalienable Rights" as provided in Article I of the Illinois Constitution (Count II). The complaint includes claims for declaratory judgment pursuant to Fed. R. Civ. P. 57 and 28 U.S.C. § 2201 (Count III); administrative review (Count IV); and petition for writ of certiorari (Count V). Defendants have moved to dismiss Count I through IV of the first amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) and to dismiss District 303 as a defendant from the entire action. Plaintiff has voluntarily withdrawn Count IV of the amended complaint. For the reasons discussed below, the court grants defendants' motion.
Plaintiff is a student at District 303's St. Charles East High School. On December 20, 2007, while plaintiff was at school, another student physically attacked him and the two engaged in a fistfight. Plaintiff claims that the attack was unprovoked and he fought in self-defense. District 303 staff broke up the fight. Later that day, District 303 and Board staff met and decided to suspend plaintiff from school for five days for violating Section 7:190 of the Board's disciplinary policy. The relevant portion of Section 7:190 provides: "Any action a student takes to inflict physical contact may be considered fighting - including, but not limited to, self-defense."
Plaintiff appealed the suspension process and a Board-appointed officer conducted a fact-finding hearing on March 4, 2008. At the hearing, plaintiff and a student who witnessed the incident testified on plaintiff's behalf. The student who initiated the fight did not attend the hearing. Defendant Shawn Burke, a Dean of Students, testified that he arrived at scene of the incident after the fight was over and school officials were separating the students. He also testified that in deciding whether to suspend plaintiff, it was immaterial whether plaintiff was protecting himself because the Board's policy does not recognize self-defense. Plaintiff's counsel raised numerous concerns about the fairness and constitutionality of Section 7:190 and requested that plaintiff's suspension be expunged from his record.
After the hearing, plaintiff wrote a letter requesting permission to address the Board when it discussed and voted on the matter. Plaintiff's request was never answered. On April 3, 2008, plaintiff received notification that the Board had met on April 1, 2008, and voted to uphold plaintiff's suspension.
Legal Standard
In analyzing the motion, the court must accept the well-pleaded allegations as true, and view those allegations in the light most favorable to plaintiff. McMillan v. Collection Prof'ls, 455 F.3d 754, 758 (7th Cir. 2006). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do . . .." Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964-65, 167 L.Ed. 2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965.
1. Equal Protection Claim
A. Standing
As a preliminary matter, defendants argue that plaintiff does not have standing to bring his equal protection and due process claims. Generally, a plaintiff has standing when the plaintiff suffers an injury-in-fact that is able to be redressed by the courts. See Kochert v. Greater Lafayette Health Services, Inc., 463 F.3d 710, 714 (7th Cir. 2006) (citing U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 627 (7th Cir.2003)). More specifically, standing requires that, "(1) the party must personally have suffered an actual or threatened injury caused by the defendant's allegedly illegal conduct, (2) the injury must be fairly traceable to the defendant's challenged conduct, and (3) the injury must be one that is likely to be redressed through a favorable decision." Sanner v. Bd. of Trade of City of Chicago, 62 F.3d 918, 922 (7th Cir.1995) (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed. 2d 700 (1982)) (internal quotation marks omitted).
Defendants' theory is that for plaintiff to have standing he must allege not only that he acted in self-defense, but also that the district made a finding that he acted in self-defense and punished him for this pursuant to the policy. Under this theory, no student would ever have standing to challenge the constitutionality of the policy because the board admittedly never considers whether a student fought in self-defense in making their rulings. Here, plaintiff's constitutional claims satisfy the legal requisites for standing. Plaintiff alleges that his suspension must be overturned because he suffered an injury -- suspension from school -- caused by the district's enforcement of its allegedly unconstitutional "zero-tolerance" policy. These allegations are sufficient to establish standing at the pleading stage.
B. Counts I & II
Under federal law, "unless a statute classifies by race, alienage, or national origin or impinges on fundamental constitutional rights, the general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Greater Chicago Combine and Center, Inc. v. City of Chicago, 431 F.3d 1065, 1072 (7th Cir. 2005) (quoting Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 766 (7th Cir. 2003)) (internal quotation marks omitted).
The parties agree that the zero tolerance policy does not create a suspect class. Therefore, the issue here is whether a high school student has a fundamental right to defend himself from physical attack while at school. Plaintiff argues that there is an implicit substantive due process right to bodily integrity, self preservation, and self-defense. Defendants counter that the right to fight in school to protect one's bodily integrity is not a fundamental right, nor a right supported by the Bill of Rights. Defendants thus urge the court to apply only rational basis review of the Board's policy and the enforcement of the policy by District 303 staff.
The Seventh Circuit has held that the right to self-defense is not a fundamental right within the Due Process Clause of the Fourteenth Amendment. Rowe v. DeBruyn, 17 F.3d 1047, 1052 (7th Cir. 1994); See Scruggs v. Jordan, 485 F.3d 934, 938-39 (7th Cir. 2007). In both Rowe and Scruggs, the court reviewed existing precedent and found that in the absence of an express or judicially created constitutional right to self-defense in the criminal law context, there was no justification for recognizing a substantive right to self-defense or defense of others in the prison context. Rowe, 17 F.3d 1047 (prison disciplinary policy that does not recognize self-defense as a complete defense to punishment does not deprive inmates who defend themselves from violent attack of their substantive due process rights); See Scruggs, 485 F.3d 934, 938-39 (7th Cir. 2007) (relying on Rowe and holding that there is no substantive right to use violence to defend others).
Although both Rowe and Scruggs were prison discipline cases, none of the cases that plaintiff cites to support his position persuade this court to reach a contrary result in the context of school disciplinary proceedings. Plaintiff calls the court's attention to numerous cases, including the recent Supreme Court decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), in support of his assertion that there is a constitutional right to self-defense. Heller held that the Second Amendment protects a citizen's right to use firearms for the lawful self-defense of one's home and family. The cases cited by plaintiff discuss different aspects of self-defense generally and the right to bodily integrity, but none hold that there is a broadly applicable constitutional right to self-defense, or a particularized right of self-defense in the school setting.
"Absent either a fundamental right or a suspect class, a court need only apply a rational basis to review the challenged state action." Smith v. Severn, 129 F.3d 419, 429 (7th Cir. 1997) (internal citations omitted). Under the rational basis test, the court "will uphold the legislative enactment (or classification) so long as it bears a rational relation to some legitimate end." Eby-Brown Co., LLC v. Wis. Dep't of Agric., Trade & Consumer Prot., 295 F.3d 749, 754 (7th Cir. 2002). This inquiry requires the court to "consider only whether any state of facts reasonably may be conceived to justify the classification." Rabbi Abraham Grossbaum and Lubavitch of Indiana, Inc. v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1292 (7th Cir. 1996). Therefore, the next step in the court's inquiry is to determine whether Section 7:190 is rationally related to a legitimate government interest.
Defendants argue that the ultimate purpose of the Board's zero-tolerance policy is to maintain a peaceful and orderly environment in the schools. Specifically, the policy aims to minimize violence by deterring students from escalating fights, even if merely in self-defense. The theory is that prolonged fighting increases the possibility of serious injury and the chance that spectators will become entangled in the brawl. Plaintiff has not negated the rationality of the policy, or demonstrated that Section 7:190 is "wholly unrelated to any legitimate state objective." Consequently, the court finds that Section 7:190 is rationally related to a legitimate government interest.*fn2 Defendants' motion to dismiss Counts I and II of the amended complaint is granted.
2. Count III: Void-for-Vagueness
Plaintiff argues that Section 7:190 is facially unconstitutional because it is impermissibly vague, and thus unfair, because it does not distinguish between those students who engage in mutual combat and those who fight merely in self-defense. However, plaintiff has not indicated how the policy is unclear. "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (U.S. 1972). To avoid being void for vagueness, laws must provide fair warning of prohibited conduct and explicit standards for how enforcement should be applied. Id. Here, Section 7:190 is not impermissibly vague because the disciplinary code is publically available and all students are put on notice that if they fight, even in self-defense, they are subject to punishment. Therefore, defendants' motion to dismiss Count III of the amended complaint is granted.
3. Qualified Immunity
To recover damages from school officials in their individual capacities in a Section 1983 case, the school official must be "personally responsible for the deprivation of a constitutional right." Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Public officials may have qualified immunity if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Behrens v. Pelletier, 516 U.S. 299, 305, 116 S.Ct. 834, 133 L.Ed. 2d 773 (1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed. 2d 396 (1982)). Here, the individual defendants are entitled to qualified immunity because plaintiff has failed to state a claim for a constitutional injury.
4. Waiver of Claims
Plaintiff has failed to respond to a number of arguments defendants assert in their motion to dismiss, that: (1) the individual defendants are entitled to absolute legislative immunity for acts taken the course of drafting Section 7:190; (2) the official capacity claims against the individual defendants are redundant of plaintiff's claim against the Board; (3) the certiorari claim (Count V) should be dismissed as to the individual defendants because they are not proper parties; and (4) plaintiff has incorrectly sued the district both as "Community Unit School District No. 303" and "Board of Education of District 303," and therefore, District 303 should be dismissed as a defendant. Because plaintiff did not respond to these arguments in defendant's motion, he has waived these claims.
For the reasons stated above, defendants' motion to dismiss Counts I through III is granted. For the same reasons, Count V (labeled "for certiorari") is dismissed. Count IV is dismissed by agreement.
Robert W. Gettleman United States District Judge
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Hampton Inn Charleston Mt Pleasant - Patriots Point
255 Sessions Way, Charleston, United States Show Map
Check in from 16h / Check out prior to 12h
Hampton Inn Charleston Mt Pleasant - Patriots Point: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Charleston, United States.
Hampton Inn Charleston Mt Pleasant - Patriots Point offers 3-star accommodation in Charleston. It also features free Wi-Fi and a fitness centre.
Hotel description
There are a range of facilities on offer to those staying at Hampton Inn, such as 24-hour reception and luggage storage and meeting facilities. It also offers a safe, a tour desk and laundry facilities.
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Air Conditioned, Refrigerator, Cable / Satellite TV, Microwave, Hair Dryer, TV, En suite, Private Bathroom
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London > Leisure > Activities
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Tameka Jenean Norris: Cut From The Same Cloth
Exhibitions | Until 21st January 2017
Ronchini Gallery 19 minutes walk from Hyde Park
New works by the American artist, using a range of media including video, installation, photography and painting. She uses her ...More
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Foodie Events | Until 31st December 2016
John Lewis Roof Garden 19 minutes walk from Hyde Park
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Richard Serra
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The fortepianist performs Schumann's Album Fur Die Jugend, Ein Choral, Kleine Studie, Canonisches, Liedchen, Erinnerung, Reiterstuck, Figurierter Choral, Sieben Clavierstucke ...More
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Sink The Pink, one of London's most notorious club nights known for throwing sell-out parties every quarter to 3,000 people ...More
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Exhibitions | On 7th December 2016
Selfridges 25 minutes walk from Hyde Park
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With a stay at La Quinta Inn & Suites Rochester in Rochester, you'll be near the airport and close to Crossroads College and Olmsted County Fairgrounds. This hotel is within the vicinity of Apache Mall and Plummer House.
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The Annex serves grab-and-go creative and traditional Hawaiian style poke bowls for a quick and tasty lunch, 7 days a week. View the menu.
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APEC Digital Hub welcomes Fall Economic Update, support for global partnerships and improving health outcomes
OTTAWA, NOV. 1, 2016—The Mood Disorders Society of Canada (MDSC), on behalf of the Asia Pacific Economic Cooperation (APEC) Digital Hub for Best and Innovative Practices in Mental Health, welcomes today's Fall Economic Update from [...]
Federal government must think big, aim high and act boldly by investing in mental health innovation and the economy
TORONTO, Oct. 21, 2016—In today's digitally interconnected world, we must look to new innovations to address some of the greatest challenges of our time such as mental illness. As a strong partner at the Asia-Pacific [...]
Clay Williams' EPIC run to Defeat Depression!
Clay Williams - has just finished running 750 KM in support of Defeat Depression - Canal Pursuit -- congratulations! While running along the Trent and Rideau Canal systems, Clay made an incredible impact speaking at [...]
Veterans to receive help to overcome barriers to jobs
September 26, 2016 Toronto, Ontario Employment and Social Development Canada Veterans struggling with mental health issues are receiving skills training and the support they need to obtain and retain employment, announced the Honourable Kent [...]
What does an Accessible Canada mean to you?
The Government of Canada recently launched a consultation process that will inform the development of planned accessibility legislation. We need your help in reaching as many Canadians as possible who are impacted by a disability, [...]
Epic 750 KM Epic Run in support of Defeat Depression
From September 11th to 23rd, Clay Williams will be running 750 km along the Trent Severn and Rideau Canals, running by 88 locks, ending on Parliament Hill, to raise funds, awareness of depression, end the [...]


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Receive a free $25 E-Gift Card With Purchase of Any New Firearm $250 or More. Excludes Sale Items. Online Only. Expires 12/10/16.
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Persons appointed shall carry out such duties relating to the management and administration of. Each candidate must be of good character.... more
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Administrative support to management as required. We are currently sourcing an Office Administrator to join our team in Galway on a 6 month contract basis.... more


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Google app for Android, iOS updated with more personalization
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A series of executives highlighted how smart city projects are enabled by data, but aggregating it isn't easy. Here's a look at the core smart city project themes.
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The new service automatically integrates with third party, open source, and IBM tools, allowing developers to quickly build and access preconfigured toolchains.
Alphabet's Google said the milestone makes it the largest corporate buyer of renewable energy.
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Take a peek inside 'Europe's most advanced datacenter'.
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Hareidi Soldier Sent to Jail for Shooting in the AirMonday, November 28th, 2016
A Hareidi soldier from Netzach Yehuda in the Kfir brigade stationed in a lookout tower shot a single bullet in the air after rocks were thrown at his position, and two rocks nearly hit him. The event happened around a week ago.
The gunfire ended the riot and stone throwing.
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In order to successfully obtain a Masters qualification, you will need to obtain a number of credits by passing individual modules. Most taught Masters will have a number of core modules which you must take and pass in order to obtain the qualification. The assessment of research Masters is almost always entirely by a single dissertation module or project.
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AIIMS Jodhpur recruitment 2016-17 notification 07 Posts : AIIMS Jodhpur invites application for the post of 07 Senior Medical Officer, Medical Officer & Yoga Instructor on contract basis.
Job Location:- Jodhpur (Rajasthan)
Last Date:- 7th September 2016
Name of Post:- Senior Medical Officer AYUSH
- Total no. of Posts:-01 Posts
- Age Limit:- 25 to 40 years
- Pay Scale:- Rs. 55000/- Per Month
- Qualification:-A Degree in any of the five streams of AYUSH from a recognized University/Statutory/ State Board/Council/ Faculty of Indian Medicine or equivalent recognized under the relevant council with 5 years experience.
Name of Post:- Medical Officer AYUSH
- Total no. of Posts:-05 Posts
- Age Limit:- 25 to 35 years
- Pay Scale:- Rs. 50000/- Per Month
- Qualification:-A Degree in concern streams of AYUSH from a recognized University/Statutory/ State Board/Council/Faculty of Indian Medicine or equivalent recognized under the relevant council with 3 years experience.
Name of Post:- Yoga Instructor
- Total no. of Posts:-01 Posts
- Age Limit:- 21 to 35 years
- Pay Scale:- Rs.270 00/- Per Month
- Qualification:-Graduate from a recognized University with diploma in Yoga from a recognized Institution by the Government. OR Graduate in Yoga Sciences from recognized University with Five years' experience of teaching and training of yoga in a recognized Institution.
Age Relaxation:-
- 3 years for OBC Candidates
- 5 years for SC/ST Candidates
- 10 years for PWD Candidates
Selection Procedure:- The selection will be made on Written Examination.
Application Fee:- Candidates have to pay Rs.1000/- through online at the time of submission of on-line application. No fee for SC/ST/PWD/Women Candidates of any community.
How to apply:- Interested and Eligible candidates may apply online through the website http://www.aiimsjodhpur.edu.in on or before 7th September 2016.
Click here to view the detailed advertisement
Click here to apply online application
General instructions:-
(i) The appointment is purely on contract basis initially for a period of 11 months. This appointment will not vest any right to claim by the candidate for regular appointment or permanent absorption in the institute OR for continued contractual appointment which may be renewed or terminated as decided by the Institute.
(ii) The period of experience wherever prescribed shall be counted after obtaining the prescribed educational qualification.
(iii) If required Computer Base Online exam/ Off-line exam will be held in Jodhpur, However, AIIMS Jodhpur reserves the right to hold examination any other places also.
(iv) The AIIMS Jodhpur reserves the right to cancel an Centre and ask the candidates of that centre to appear from another center. AIIMS, Jodhpur also reserves the right to divert candidates of any center to some other Centre with the Region or outside to take the examination.
(v) In view of the huge number of applicants, scrutiny of the eligibility category etc. may not be undertaken at the time of examination. Therefore, the application may be accepted provisionally only. The candidates are advised to go through the requirements of educational qualification, age, physical standards etc. and satisfy themselves that they are eligible, before applying and before indicating their preference for any particular posts. Copies of supporting documents will be sought only from those candidates who appear in examination at the time of data entry skill test/computer proficiency test/document verification.
Candidature will be cancelled if any information or claim is not found substantiated when the scrutiny of documents is undertaken by the AIIMS, Jodhpur after the Examination. AIIMS, Jodhpur decision shall be final in this regards.
(vi) Candidates seeking reservation benefits for SC/ST/OBC/PH/EXS must ensure that they are entitled to such reservation as per eligibility prescribed in the Notice. They should also be in possession of the required certificates in the prescribed format in support of their claim as stipulated in this Notice. OBC candidates should ensure that they are in possession of valid OBC Certificate issued within the due date, issued by the competent authority.
(vii) Candidates with visual disability of 40% and more will only be considered as VISUALLYHANDICAPPED and entitled to reservation for VH candidates, wherever such reservation is available.
(viii) Central Government civilian employees claiming age relaxation should produce a certificate in the prescribed format, available on AIIMS, Jodhpur website, from their office at the time of date Entry Skill Test/ Computer Proficiency Tests/ Document Verification, in respect of the length of continuous service which should be not less than three years during the period immediately preceding the closing date for receipt of application. They should remain Central Government civilian employees till the time of appointment, in the event of their selection.
(ix) Closing Date: 07th September, 2016 (up to 5.00 PM).
(x) For format of certificates/annexures, please visit our official website www.aiimsjodhpur.edu.in.
(xi) The post(s) is/are whole time and private practice of any kind is prohibited.
(xii) The Candidate will have to work in shifts and can be posted at any place in the Institute.
(xiii) The Candidate are likely to be posted at rural health and urban center attached with the institute for the period to be decided by the Institute as applicable.
(xiv) AIIMS reserves the rights to increase or decrease the number of vacancies.
(xv) Incomplete applications(s) will not be considered.
(xvi) Canvassing of any kind will be a disqualification.
(xvii) The candidate should not have been convicted by any Court of Law.
(xviii) In case any information given or declaration by the candidate is found to be false or if the candidate has willfully suppressed any material information relevant to this appointment, he/she will be liable to be removed from the service and any action taken as deemed fit by the appointing authority.
(xix) The Competent Authority reserves the right of any amendment, cancellation and changes to this advertisement as a whole or in part without assigning any reason or giving notice.
(xx) The decision of the competent authority regarding conduct of examination, interview, verification of documents and selection would be final and binding on all candidates. No representation correspondence will be entertained in this regard.
(xxi) All disputes will be subject to jurisdiction of Court of Law at JODHPUR.


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Android Phone Should Be Rooted
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GT Recovery UnDelete Restore
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can recover using this app like WiFi password, messages, call history, images, E.T.C.
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Android Data Recover Software
android data recovery software. we told you android data recover using Android Application but now i show you how to recover android mobile data through computer.
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when you'll Download android recovery software. you'll be install this software you will be open on your computer front of your computer screen will have 4 options.
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Wait Few Minute…
after the recover your file. software will ask you do you want save this data on your android device or your personal computer chose and save your data.
in this article we told you how to android data recovery using Android Application and Computer software. i hope this article helpful for you.
this article helpful for you so please share this article for your friends and relatives. you have any suggestion and tips so please share with me.
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text: Find free courses with OpenCourseWare FinderAdam Pash12/20/05 2:30pmFiled to: LearningFree informationTop2EditPromoteShare to KinjaToggle Conversation toolsGo to permalink The OpenCourseWare Finder organizes and lists open (read:free) university courses with materials that you can access online. Advertisement Currently the OpenCourseWare Finder is listing results from five universities like MIT and Tufts. The usefulness of the materials provided online varies from course to course, but it's worth checking out if you're interested in freely available university learnin'.OpenCourseWare FinderGear from Kinja DealsTwelve South's Fermata Headphone Stand Displays and Charges Your CansBestsellers: Belkin 12-Outlet Pivot-Plug Surge ProtectorSaturday's Best Deals: Amazon Ray-Ban Sale, Smart Thermostat, $5 Off All BooksReplyLeave a reply