Opinion
01 C 9686
May 15, 2002
MEMORANDUM OPINION
This matter comes before the court on motions to dismiss by Defendants City of Chicago ("the City"), Terry Hillard ("Hillard"), Dennis Lesniak ("Lesniak"), Gerard Mahnke ("Mahnke"), Kevin Reppen ("Reppen"), and Diane Chambers ("Chambers"). For the reasons set forth below, the motions are granted.
BACKGROUND
Plaintiff Gloria Ekerman ("Ekerman") is a police detective for Defendant City of Chicago ("the City"). According to the complaint, beginning in December 2000 Ekerman was subjected to various remarks made by Deputy Chief of Police Dennis Lesniak ("Lesniak"), which she contends created a hostile work environment. Ekerman complained about this behavior both to the EEOC and to other superior officers. She alleges that Superintendent of Police Terry Hillard ("Hillard"), Commander of Detectives Gerard Mahnke ("Mahnke"), Sergeant Kevin Reppen ("Reppen"), and Police Nurse Diane Chambers ("Chambers") took retaliatory action against her for making these complaints. The actions in question included transfer from the Domestic Violence Unit to the Property Crimes Unit, deprivation of medical leave, and performance ratings that were lower than her work warranted.
The City, Hillard, Lesniak, Mahnke, Reppen, and Chambers have moved to dismiss certain counts of the complaint pursuant to Fed.R.Civ.Proc. 12(b)(6).
LEGAL STANDARD
The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of a complaint. Triad Associates, Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to dismiss, the court must construe the allegations of the complaint in the light most favorable to the plaintiff, and all well-pleaded facts and allegations in the complaint must be accepted as true. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).
The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). With these principles in mind, we turn to the instant motions.
DISCUSSION
As an initial matter, the City points out that although the complaint names the Chicago Police Department as a defendant, the department is a division of the City and has no independent legal existence. Resse v. Chicago Police Dept, 602 F. Supp. 441, 443 (N.D. Ill. 1984). As such, the department is not suable and it is dismissed; indeed, because the complaint also names the City, mention of the department is redundant.See McCraven v. City of Chicago, 18 F. Supp.2d 877, 881 (N.D. Ill. 1998).
Title VII
Hillard, Lesniak, Mahnke, Reppen, and Chambers all move to dismiss the portions of the complaint that attempt to impose liability on them pursuant to Title VII. They correctly assert that Seventh Circuit caselaw clearly establishes that supervisors cannot be sued under that statute because they would not be considered employers for Title VII purposes.See Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995); see also EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995) (holding that supervisors cannot be subject to individual liability under the ADA). Ekerman disagrees, citing language from Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769, 785 (N.D. Ill. 1993). She ignores the fact that not only did Banning and AIC explicitly hold the opposite ofVakharia but a later opinion issued in that case acknowledged the change in the applicable law. Vakharia v. Swedish Covenant Hosp., 987 F. Supp. 633, 635-36 (N.D. Ill. 1997). In addition, the cases Ekerman cites from other circuits that would support her position are no longer good law within those circuits. See Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997); Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996) (reiterating, despite Ball v. Renner, 54 F.3d 664, that 10th Circuit caselaw holds that individual supervisors are not subject to liability under Title VII); Grant v. Lone Star Co., 21 F.3d 649, 652, 653 (5th Cir. 1994) (reversing district court's imposition of liability on branch manager under Title VII); Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) (specifically rejecting to read Hamilton v. Rodgers as allowing individual liability under Title VII).
Ekerman's complaint contains no indication that the Hillard, Lesniak, Mahnke, Reppen, and Chambers would fit Title VII's definition of"employer." It alleges only that they, like Ekerman, were City employees. As such, any claims premised on Title VII against those five defendants cannot stand and are dismissed.
Municipal Liability Under § 1983
With regard to the claims brought under 42 U.S.C. § 1983, Ekerman first attempts to bring an action against the City itself. To establish municipal liability, Ekerman must allege enforcement of an express policy that violates her federal rights, a widespread practice so pervasive and accepted that it takes on the force of law, or a federal injury caused by a city official with final policymaking authority. Ineco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002); McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). Ekerman has chosen to pursue the third route, arguing that Hillard, Lesniak, and Mahnke are high-ranking officials with policymaking power whose alleged constitutional wrongs against her can be imputed to the City. Even assuming that the actions of these defendants rose to the level of an injury of constitutional proportions, as a matter of law they are not policymakers for the City and their actions cannot be a basis for municipal liability under § 1983. Neither the Superintendent of Police, here Hillard, nor lower-ranking officers, such as Lesniak and Mahnke, are the final policymaking authority for matters involving the Chicago Police Department. See, e.g., Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir. 1992). This deficiency leads to the inescapable conclusion that Ekerman has not alleged a proper claim against the City under § 1983.
Individual Liability Under § 1983
All five individual defendants have asserted qualified immunity from Ekerman's § 1983 action. It thus becomes her burden to show they are not entitled to the defense. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999). To shoulder this burden, Ekerman must pass the threshold hurdle of showing a deprivation of a right, privilege, or immunity secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. Without a statutory or constitutional violation, the defense remains intact. Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001).
The complaint relies on only two statutes, Title VII and § 1983. Neither will suffice to underlie Ekerman's § 1983 claims. As stated earlier, the individual defendants are not "employers." Thus, none of their behavior is actionable under Title VII, and Ekerman cannot allege Title VII violations by those parties as a foundation for § 1983 liability. See Huebschen v. Dept. of Health and Human Servs., 716 F.2d 1167, 1170-71 (7th Cir. 1983). Furthermore, Ekerman cannot use § 1983 itself for this purpose. Besides the absurd tautology that would result, it is well settled that § 1983 is not an independent fount of federal rights but only the mechanism for obtaining vindication of rights conferred elsewhere. Graham v. Connor, 109 S.Ct. 1865, 1870-71 (1989).
If Ekerman is to defeat defendants' assertion that they are entitled to qualified immunity, therefore, she must show a violation of her constitutional rights. Her complaint alludes to two separate areas: sexual harassment prohibited by the equal protection clause of the Fourteenth Amendment and unlawful retaliation for First Amendment activities, namely lodging complaints of the alleged sexual harassment.
The City argues that Ekerman's allegations of harassment by Lesniak involve only his isolated comment about her height. Employment decisions based solely on height do not violate the equal protection clause; neither can a coworker's mere recognition of a plaintiff's physical stature. See Dothard v. Rawlinson, 97 S.Ct. 2720, 2726 (1977) (holding that employer's decisions based on a facially neutral height standard must show a significant discriminatory pattern to establish an equal protection violation); Dey v. Colt Construction and Development Co., 28 F.3d 1446, 1456 (7th Cir. 1994) (holding that a single remark cannot create a hostile work environment). The slight Ekerman suffered at the comment about her height does not implicate her sex or membership in any other protected class, so there can be no violation of her equal protection rights, and Lesniak is entitled to qualified immunity.Huebschen, 716 F.2d at 1171.
Finally, we must examine Ekerman's claim of First Amendment retaliation, which implicates the other four individual defendants. These claims fail for two reasons. First, to be protected by the First Amendment, a plaintiff's speech must relate to a matter of public concern. Connick v. Myers, 103 S.Ct. 1684, 1689 (1983). In the context of sexual harassment in the workplace, if complaints of sexual harassment are motivated only by a desire to end the harassment, the speech does not relate to a matter of public concern and therefore cannot form the basis of a retaliation claim See, e.g., Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469, 482-83 (7th Cir. 1995); Gray v. Lacke, 885 F.2d 399, 411 (7th Cir. 1989). Second, Ekerman's responses premise the individual liability of Hillard, Mahnke, Chambers, and Reppen on her assertion that they held final policymaking power for the City. Even if this were an accurate characterization of the authority of these defendants (which, as discussed above, it is not), the ability to set policy for the municipality is irrelevant to individual liability under § 1983. In short, Ekerman has failed to allege any violation of her federal rights by Hillard, Mahnke, Chambers, or Reppen, and therefore they are qualifiedly immune from her suit.
In point of fact, Ekerman filed no response to Reppen's motion to dismiss. Given the identical nature of her responses to the positions of the other defendants, we presume that she would have made this argument with regard to Reppen as well.
CONCLUSION
Based on the foregoing analysis, we dismiss all claims against the Chicago Police Department, Lesniak, Hillard, Mahnke, Reppen, and Chambers. The § 1983 claims against the City are also dismissed.