Summary
finding some of the plaintiff's claims were time-barred on a motion for summary judgment after a previous judge denied a motion to dismiss based on allegations the claims were time-barred
Summary of this case from Mchugh v. City of ChicagoOpinion
No. 97 C 8861.
March 3, 2000.
MEMORANDUM OPINION AND ORDER
Ruth Figueroa ("Figueroa") sues the City of Chicago ("City") for sexual harassment and retaliation under Title VII, and Rick Santella ("Santella"), Eileen Joyce ("Joyce"), and Rudy Urian ("Urian") under 42 U.S.C. § 1983 for violation of her right to be free from sexual harassment under the equal protection clause. Figueroa also sues Urian and Noel Murtagh ("Murtagh") for intentional infliction of emotional distress. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56.
BACKGROUND
The court views the background facts in a light most favorable to Figueroa as the non-movant; all disputed facts must be resolved in her favor for purposes of these motions.
A. Figueroa and Urian
Figueroa has worked for the City's department of fleet management ("Fleet") since 1992. Fleet maintains and repairs the City's vehicles and equipment. Beginning in 1992, Figueroa supervised the service writers at the Fleet's main facility at North Avenue and Throop Street ("North and Throop") in Chicago. Urian has been deputy commissioner of Fleet since June 1994. He was Figueroa's direct supervisor from 1992 until September 1997. According to Figueroa, Urian engaged in a pattern of unwanted sexual harassment toward her beginning in 1992. At first, Urian allegedly patted and hugged Figueroa, sometimes attempting to kiss her on the lips. Urian purportedly degraded her in front of other male employees, asked her to hug and kiss him after meetings, and told her she had to stay late into the night for meetings, even when there was another night supervisor. Urian's conduct later escalated. According to Figueroa, on one occasion in June 1995, Urian came to her house uninvited in the middle of the night while Figueroa's husband was out of town, ostensibly to see if Figueroa's children needed milk. Urian asked to come in, but Figueroa asked him to leave. Urian did so after learning Figueroa's mother was in the house. In November 1995, Urian touched his private parts in front of Figueroa while the two of them were alone in the office after hours. Also in late 1995, Urian attempted to kiss Figueroa by bending over her.
In 1996, Urian came to Figueroa's cubicle and kissed her, sticking his tongue in her mouth. On another occasion in 1996, Urian pinned Figueroa up against a wall while kissing her and propositioning her for sex. In March 1996, Urian came to work on his day off and insisted Figueroa ride with him to the bank to cash his check, even though Figueroa stated she did not want to go. Other workers offered to go with Urian instead or arrange an alternate driver, but Urian insisted Figueroa accompany him. Figueroa did so because she felt it was an order. After going to the bank, Urian took Figueroa to lunch treating it as a date, took her to his house, insisted that Figueroa enter the house, and expressed his desire to have an affair. All of this allegedly occurred during working hours, and happened only a few weeks after Figueroa had married.
Figueroa occasionally discussed Urian's conduct with Mary Loye, a personnel supervisor and the sexual harassment liaison officer at Fleet, and Kevin Fitzpatrick, a supervisor in Figueroa's department. Only one of the conversations with Loye occurred at work; the other conversations occurred outside working hours. Loye told Figueroa of the Fleet's sexual harassment policy and told Figueroa to report Urian's conduct. However, Figueroa asked Loye and Fitzpatrick to keep her conversations about Urian's conduct confidential, and said she would deny the allegations if they reported them.
By 1997, sexually explicit graffiti directed at and depicting Figueroa appeared in the men's bathroom and on the door of the women's bathroom. According to Figueroa, she complained to Urian about the graffiti many times, but he laughed it off, told her the complaints were "stupid" and "baby stuff," and told her not to bother him with it. Urian never conducted any personal investigations of the graffiti, but he testified that he directed Figueroa to see Sergeant Joe Chiczewski, the Fleet's director of internal investigations, and Joyce, whom Urian believed conducted investigations. Urian Dep. Vol. II at 290-91.
On May 20, 1997, Figueroa filed a complaint with the City's sexual harassment office concerning the graffiti; she did not complain of Urian's sexual harassment. Photographs were taken of the graffiti around May 15, 1997 and given to Chiczewski. A few days later, Figueroa told Joyce that she wanted copies of the photos to take to the sexual harassment office as part of her complaint. According to Figueroa, Joyce told her she could not have the photos because Santella, the commissioner of Fleet, had them. Joyce refused to get the photos. Joyce also told Figueroa she was aware of the situation, advised Figueroa not to report to the sexual harassment office, and told her instead to wait while the matter was resolved internally at Fleet. Figueroa Dep. Vol. I at 218; Vol. II. at 36-39. On May 19, 1997, photographs were taken of newly written graffiti and given to Chiczewski's assistant. The sexual harassment office obtained copies of the photographs by May 21, 1997, when Chiczewski returned from vacation. The graffiti stopped immediately after Figueroa complained to the sexual harassment office.
Santella did not learn of the graffiti until Joyce told him in mid-May 1997 that Figueroa had filed a complaint with the sexual harassment office. Santella instructed Joyce to cooperate with the sexual harassment office investigation. Joyce provided the sexual harassment office with documentation during its investigation and scheduled interviews of various employees. Figueroa claims she sent a memo to Santella requesting to meet with him about her complaint, but never received a response. Santella referred the request to Urian and Joyce. Figueroa testified that Urian said Santella was "pissed off" at her for complaining about harassment and that Santella thought she was an embarrassment to Fleet. Figueroa Dep. Vol. II at 45.
B. Figueroa and Murtagh
Figueroa's duties at Fleet have always included preparation of a document known as the "24-hour report." The 24-hour report is used to monitor the vehicles needing repair at each facility and tracks those vehicles that have been out of service for more than 24 hours. Fleet has had problems with accuracy of 24-hour reports for years. From 1992 through 1994, Murtagh was foreman at another Fleet location. He and Figueroa interacted periodically during this time, frequently discussing the 24-hour report. According to Figueroa, Murtagh repeatedly objected to her handling of the 24-hour report during this period. Figueroa Dep. Vol. V. at 34-35.
In 1995, Murtagh transferred to North and Throop as the manager of vehicle maintenance, and shared an office with Figueroa and several other employees. Murtagh was to ensure the accuracy of the 24-hour report, and was held accountable by Santella if the report was not accurate. Figueroa testified that she and Murtagh continued to disagree on a regular basis about work-related procedures at North and Throop and that Murtagh spoke to her only about work-related matters; she further testified that Murtagh was aggressive, loud, and rude in his dealings with her, and that she felt he was prejudiced against her. Figueroa Dep. Vol. V. at 8-11. According to Figueroa, Murtagh repeatedly used the word "fuck" in her presence and made derogatory comments about women drivers and garage workers. Id. Vol. I at 75; Vol. II at 22. Murtagh made a variety of racially derogatory remarks concerning Hispanics in Figueroa's presence, and did so "constantly" after he began working closely with Figueroa in 1996. Id. Vol. V at 13. Figueroa testified that coworkers laughed at Murtagh's treatment of her as though it were a joke.
Figueroa periodically complained to Urian about Murtagh's conduct. Urian "made a joke" of her complaints, replied they were not important, and told her to "just work with [Murtagh]" because "you know how he is." Id. Vol. I at 84-85. One time after Figueroa complained to Urian, Murtagh said to her in front of all the service writers, "the next time you're going to fucking cry to Urian, make sure you tell him everything." Id. at 85. According to Figueroa, she asked Murtagh what he wanted from her and told him he could not expect people to obey her as a supervisor when he would not respect her; Murtagh ignored her.
By late 1996, Figueroa complained to Urian that Murtagh's language, liberal use of the "f-word", and insults about women in the workplace were unacceptable. Urian intervened. Murtagh stopped using foul language to Figueroa's face but continued to use such language around Figueroa in a loud but indirect manner and make derogatory remarks about Figueroa. Figueroa testified that Murtagh's conduct became worse after she complained to the sexual harassment office in May 1997. Figueroa Dep. Vol. II. at 20-21. Murtagh referred to her as a "fucking princess" and would occasionally ball and shake his fists while speaking to Figueroa in an angry manner. Id. Vol. V at 64, 93.
Murtagh and Figueroa met with Urian in July 1997 to discuss Figueroa's problems with Murtagh. According to Figueroa, Murtagh refused to sign her time sheet for two days in July because she did not speak with Murtagh when she telephoned to report her absence on those two days. Figueroa also complained that Murtagh continued to use foul language in her presence, and problems over the 24-hour report were discussed. Murtagh apologized for his behavior, complimented Figueroa's overall performance, but suggested she put more focus on the 24-hour report, which Figueroa admitted was not always completely accurate.
C. Retaliation after filing suit
Figueroa testified that after filing suit in December 1997 she was closely monitored, constantly reviewed, and had to report her lunches and breaks. Figueroa Dep. at Vol. I at 34-35. Joyce withdrew her prior approval of Figueroa's administrative leave time in December 1997, and docked Figueroa's pay for days that she had been granted leave. Id. Vol. II. at 27; 237-38. According to Figueroa, Maze Coburn ("Coburn"), her direct supervisor after she filed suit, yelled at employees for talking to her, began asking Figueroa questions about her job duties, and started writing memos scrutinizing her work.
Figueroa testified that Murtagh stared at her across their desks in a threatening manner for about a week after she filed suit. Id. Vol. V at 154-56. According to Figueroa, Murtagh instituted a "conspiracy of silence" and told other employees not to speak with her or else they would "get a lawsuit." Id. Vol. II at 114-15. In addition, Murtagh wrote memos to Joyce complaining about handling of the 24-hour reports by Figueroa's service writers department. According to Figueroa, Murtagh used these memos to assign blame to her for inaccuracies in the 24-hour report, inaccuracies caused by other employees for whom she was not responsible. However, the service writers under Figueroa's supervision could have been responsible for some of the inaccuracies. According to Murtagh, he wrote the memos because Santella "grilled" him days before and demanded that Murtagh document the reasons for inaccuracies in the reports. Murtagh Dep. at 173-75.
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
A movant is entitled to show under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992)
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (citations omitted). Although this language could be misconstrued to require heightened review in employment cases, the Seventh Circuit has stressed that "there is no separate rule of civil procedure in employment discrimination cases;" rather, the "added rigor" language means only that "courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Employment discrimination case or not, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
II. LAW OF THE CASE
This case was originally assigned to Judge Williams. Figueroa argues Judge Williams' order denying defendants' motions to dismiss is the "law of the case" and controls many of the legal issues relevant to the motions for summary judgment. However, Judge Williams' disposition of the motions to dismiss does not control the analysis of the present motions. The law of the case doctrine "is no more than a presumption, one whose strength varies with the circumstances; it is not a straightjacket."Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227-28 (7th Cir. 1995). District courts have the authority to reconsider their decisions on a motion to dismiss at any time.Cameo v. Convalescent Center, Inc. v. Percy, 800 F.2d 108, 110 (7th Cir. 1986). Moreover, "a court's decision constitutes the law of the case only if the court `actually decided' the issue."In re Soybean Futures Litigation, 892 F. Supp. 1025, 1042 (N.D. Ill. 1995) (quoting PaineWebber, Inc. v. Farnam, 870 F.2d 1286, 1291 (7th Cir. 1989)). In denying defendants' motion to dismiss, Judge Williams examined only whether Figueroa sufficiently plead causes of action; she did not examine, as she could not on a motion to dismiss, the factual support for the allegations. On the present motions, this court is presented with a new inquiry, namely, whether the fully-developed factual record contains disputed issues of material fact entitling Figueroa to trial on her claims. The court does not simply reanalyze Figueroa's legal claims in the abstract, but instead takes a fresh look at the strength of the legal claims in light of the factual record.
III. STATUTE OF LIMITATIONS
Before addressing the substantive claims, the court must dispose of the City's and Urian's argument that much of Urian's alleged harassment cannot serve as the basis for claims against them because the conduct falls outside the relevant limitations periods. First, Figueroa sues the City in Count IV for sexual harassment in violation of Title VII. She contends sexual harassment resulted (1) from Urian's sexual advances and threats of adverse consequences if she refused; and (2) from sexually explicit graffiti directed toward her. The City moves for summary judgment only on Figueroa's first theory of sexual harassment; it does seek judgment on whether the graffiti constituted sexual harassment. Title VII requires a plaintiff to file an EEOC charge alleging discrimination no later than 300 days after the discriminatory conduct. 42 U.S.C. § 2000e-5. Figueroa filed her first EEOC charge on November 5, 1997. The City argues that any conduct occurring prior to January 9, 1997 (300 days prior to November 5, 1997) is time-barred and cannot be the basis of Figueroa's Title VII claims.
Second, Figueroa sues Urian under § 1983 for violation of her equal protection right to be free from sexual harassment, and for intentional infliction of emotional distress. Figueroa filed her complaint in federal court on December 22, 1997. Urian argues that because the statute of limitations for the § 1983 and intentional infliction of emotional distress claims against him is two years, any conduct occurring prior to December 22, 1995 is not actionable.
Figueroa responds that pre-January 9, 1997 conduct may serve as the basis for her Title VII claims against the City and pre-December 22, 1995 conduct may serve as the basis for her § 1983 and intentional infliction of emotional distress claims against Urian because the earlier conduct is part of a continuing violation. Under the continuing violation doctrine, a consistent pattern of harassment is treated as one continuous act, and a plaintiff may obtain relief for time-barred acts by linking them to acts that are within the limitations period. Wilson v. Chrysler Corp., 172 F.3d 500, 510 (7th Cir. 1999). If the plaintiff sues "as soon as the harassment becomes sufficiently palpable that a reasonable person would realize she had a substantial [civil rights] claim," then the plaintiff can rely upon conduct occurring outside the limitations period that contributed to making working conditions unbearable. Galloway v. General Motors Serv. Parts. Oper., 78 F.3d 1164, 1166 (7th Cir. 1996). However, acts of harassment "so discrete in time or circumstances that they do not reinforce each other cannot reasonably be linked together into a single chain, a single course of conduct, to defeat the statute of limitations." Id.
Urian's statute of limitations argument is meritorious. Although a majority of the incidents Figueroa complains of occurred after December 1995, Urian's earlier alleged harassment was sufficiently palpable to make a reasonable person aware she had a substantial claim. Before December 1995, Urian purportedly engaged in uninvited and improper conduct by touching and attempting to kiss Figueroa and by touching his genitals in her presence. Thus, conduct occurring before December 1995 cannot be deemed a continuing violation exempt from the statute of limitations. Figueroa cannot rely on these incidents to support her § 1983 and emotional distress claims against Urian.
Similarly, pre-December 1995 conduct may not serve as the basis for Figueroa's Title VII claim against the City. Moreover, Figueroa cannot rely on Urian's 1996 conduct in her Title VII claims. Urian's conduct in 1996 was sufficient to alert Figueroa that she was the victim of sexual harassment. Specifically, Figueroa contends Urian kissed her on two occasions in 1996, once while pinning her against a wall and propositioning her for sex, and that he forced her to accompany him to the bank during working hours, then he drove her to his home, ordered her to come in, and discussed having an affair with her just weeks after she had married. At the time of these instances in 1996, Figueroa should have known she had a harassment claim. This conclusion is reinforced by the undisputed fact that Figueroa discussed these incidents with Loye, who advised her to report them pursuant to the City's sexual harassment policy. Moreover, Figueroa argues elsewhere in her brief that Loye was unreasonable in not reporting the conduct, despite Figueroa's request that Loye maintain confidentiality, because Loye was required to report instances of harassment. Figueroa waited more than 300 days after this conduct before she filed her charge of discrimination with the EEOC. And even if the 1996 conduct fell within the continuing violation doctrine, Figueroa points to no incident of harassment by Urian within the 300 day period that could serve to "anchor" the conduct occurring in 1996. Figueroa's Title VII claim against the City based upon Urian's harassment is time-barred. Figueroa may only pursue her Title VII harassment claim against the City to the extent it is based on sexually explicit graffiti.
Figueroa sparingly argues Urian's failure to respond to the graffiti in May 1997 constitutes an act of harassment within the 300 period. However, Urian's failure to respond concerns Figueroa's graffiti claim, not her claim of harassment by Urian.
IV. SECTION 1983 CLAIM AGAINST SANTELLA AND JOYCE
Figueroa sues Santella and Joyce in their individual capacities under § 1983 for violation of her equal protection right to be free from sexual harassment. She argues Santella and Joyce are liable as supervisors for "turning a blind eye" to and failing to report Urian's harassment and the explicit graffiti. The doctrine of respondeat superior does not apply in § 1983 cases; supervisors cannot be held liable under § 1983 for the conduct of a subordinate who violates the plaintiff's constitutional rights where the supervisors are simply negligent in failing to detect and prevent subordinate misconduct.Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997) Instead, Figueroa must show that the supervisors were personally involved in the violation. Id.; Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Personal involvement occurs where the supervisors "know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference." Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988)). Accordingly, Figueroa's § 1983 claims against Santella and Joyce survive summary judgment only if she points to facts supporting a reasonable inference that Santella and Joyce knew of the harassment and graffiti or were recklessly indifferent.
A. Sexually Explicit Graffiti
Figueroa does not contend she formally notified Joyce of the graffiti. However, Figueroa argues Joyce's reckless disregard of the graffiti is evinced by (1) Joyce's failure to report the graffiti as required by the City's sexual harassment policy after she became aware of the graffiti through other means; and (2) Joyce's attempt to dissuade Figueroa from complaining to the sexual harassment office about the graffiti. Both arguments lack merit. As to the first, Figueroa argues that Joyce knew of the graffiti by May 1997. She points to her conversation with Joyce on May 15 or 16, in which she requested copies of the photos of the graffiti in order to take them to her meeting with the sexual harassment office. Figueroa testified that Joyce told her she was aware of the situation but that Figueroa could not have the photos because Santella had them. Figueroa contends Joyce was recklessly indifferent by not acting upon this knowledge because the graffiti occurred again only three days later on May 19. However, even if Joyce was recklessly indifferent, there simply is no evidence from which a reasonable trier of fact could find that Joyce's reckless indifference caused a constitutional violation. The vast majority of graffiti occurred before Joyce knew of the graffiti in May 1997. A single instance of graffiti three days after Joyce had knowledge of the graffiti does not constitute a constitutional violation under § 1983. See Saxton v. American Tel., 10 F.3d 526, 533 (7th Cir. 1993) ("relatively isolated instances of non-severe misconduct will not support a hostile environment claim"). Figueroa does not contend the graffiti occurred again after May 20, the day she filed her complaint with the sexual harassment office.
Joyce contends the conversation occurred on May 20, 1997.
Figueroa's claim that Joyce was recklessly indifferent in trying to dissuade her from complaining to the sexual harassment office also lacks a causal connection to any constitutional violation. Figueroa does not argue Joyce prevented her from going to the sexual harassment office, or that the sexual harassment office's investigation was impeded by Joyce. To the contrary, evidence indicates that by the time Joyce knew of the graffiti, she also knew that Figueroa filed a complaint, that the sexual harassment office was investigating the complaint, and that a memo concerning graffiti had been posted in the workplace. Joyce also provided information to the sexual harassment office during the course of its investigation and interviewed witnesses. In these circumstances, a reasonable jury could not conclude that Joyce was recklessly indifferent, much less that her reckless indifference prevented the sexual harassment office from receiving a complaint about the graffiti.
Next, Figueroa fails to show Santella had sufficient knowledge of the graffiti while it persisted in order to rectify the hostile environment based on the graffiti. Evidence indicates Santella did not learn of the graffiti until Joyce spoke with him after her May 15 or 16, 1997 conversation with Figueroa. Moreover, Santella knew that a memo concerning the graffiti had been posted, and he instructed Joyce to cooperate with the sexual harassment office investigation. Santella's knowledge of the graffiti in mid-May fails to support a reckless indifference claim.
Figueroa contends Santella was recklessly indifferent because he refused to meet with her in August 1997 about her complaint, and that Urian told her Santella was "pissed off" at her for complaining about the harassment. Even if true, these events in August 1997 cannot establish Santella's participation in or approval of graffiti that ceased by May 1997. After May 1997, there was no potential constitutional violation to which Santella could have been recklessly indifferent.
B. Urian's Sexual Harassment
Figueroa argues Joyce and Santella knew of Urian's sexual harassment and failed to prevent it. She does not contend that she ever reported the harassment to them. Rather, she contends Urian's harassing behavior toward women was long-standing, thereby suggesting that Joyce and Santella must have been aware of the harassment. Speculation of this sort will not defeat a motion for summary judgment. Figueroa asserts Urian aided Santella's brother in obtaining a job at Fleet, apparently suggesting Urian and Santella were close and therefore Santella knew about Urian's harassment. Even if true, this fact is simply too tenuous to support a reasonable inference that Santella knew of Urian's harassment. Accordingly, summary judgment must be entered against Figueroa on her § 1983 claim against Joyce and Santella.
IV. Title VII Retaliation Claim Against City
Figueroa contends the City violated Title VII by retaliating against her after she complained about harassment and filed suit. Figueroa relies on indirect evidence to prove retaliation, using the burden-shifting framework recognized in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hunt-Golliday v. Metropolitan Water, 104 F.3d 1004, 1014 (7th Cir. 1997). Under the McDonnell Douglas framework, Figueroa must first establish a prima fade case of retaliation by showing: (1) she engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action. McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 483 (7th Cir. 1996); Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1038 (7th Cir. 1996). If Figueroa establishes a prima facie case, the burden of production shifts to the City to articulate a legitimate, non-retaliatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802-03; McKenzie, 92 F.3d at 483. Once the City articulates a non-discriminatory reason for the adverse employment action, the burden shifts back to Figueroa to show the City's proffered reason is merely a pretext and that its actual reason was discriminatory. McKenzie, 92 F.3d at 483;Dey, 28 F.3d at 1457 (citing McDonnell Douglas).
The primary point of contention is whether Figueroa suffered an adverse employment action after she complained of harassment. An "adverse job action is not limited solely to loss or reduction of pay or monetary benefits" but "can encompass other forms of adversity as well." Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987). However, the adverse action must be material:
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a 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.Crady v. Liberty National Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Figueroa contends she suffered the following adverse actions after complaining to the sexual harassment office in May 1997: coworkers ignored her; Urian interrogated her about the complaint; Santella refused to meet with her about the complaint; Chiczewski followed her from her home in his car on one occasion; employees accused of writing the graffiti told others that Figueroa accused them of the graffiti. Figueroa further asserts that after filing suit in December 1997, a newspaper article covering her suit was defaced; Joyce required her to check in and out for breaks and lunch; she was improperly denied pay for four days; her duties as supervisor were reduced when another service writer was put in charge of the Fleet's outlying facilities, while Figueroa retained supervision only of the service writers at North and Throop; and Coburn, her direct supervisor, harassed her.
Only denial of pay and reduction in Figueroa's duties constitute possible adverse employment actions. See Sweeny v. West, 149 F.3d 550, 556 (7th Cir. 1998) ("Common sense and the examples used in [Title VII] exclude instances of different treatment that have little or no effect on an employee's job;" unfair reprimands against plaintiff did not constitute adverse employment actions). The other instances cited by Figueroa may constitute evidence of discrimination, but not a retaliatory adverse employment action. Id. And Figueroa offers no evidence suggesting the City either directed or acquiesced in the other allegedly retaliatory conduct. Compare Knox v. State of Indiana, 93 F.3d 1327 (7th Cir. 1996) (employer's knowledge of vicious co-worker gossip and its failure to do anything about it may constitute employer acquiescence to retaliation)
The City offers legitimate, non-discriminatory reasons for both actions. First, the City offers evidence indicating that the reduction in Figueroa's work duties was in response to her own request for an equitable redistribution of responsibilities. Prior to January 1998, Figueroa supervised the Fleet's service writers during the day shift, while Cleveland Thomas ("Thomas") supervised the writers on the afternoon and night shifts. Both Figueroa and Thomas supervised the writers at all of Fleet's facilities during their respective shifts. However, during two meetings with Joyce in late 1997, Figueroa complained that she was doing more work than Thomas because most of the work in the service office was performed during the day shift. Joyce told Figueroa to come to an agreement with Thomas as to an equitable division of the workload, and told Figueroa she was amenable to Figueroa and Thomas' agreement. However, neither Figueroa nor Thomas ever told Joyce that they reached an agreement. In January 1998, Joyce reduced the scope of Figueroa's supervision to only those writers at the North and Throop facility during the day shift. Figueroa claims this was retaliatory, but fails to proffer evidence that this change was not responsive to her earlier request for a fair distribution of work duties. Moreover, Joyce made the change after Figueroa failed to tell her how she wished to have her workload redistributed.
Second, Figueroa claims retaliation occurred when her paycheck was docked four days' pay in December 1997. She argues Joyce gave her approval to take four administrative leave days between December 23 and December 31, but after Figueroa took the days, Joyce withdrew her prior approval and docked Figueroa's pay in early January 1998. However, Joyce attested that Figueroa took four administrative leave days between December 1 and December 15 without Joyce's approval. The City contends this is the reason Figueroa's pay was docked four days in early January 1998. Figueroa offers no evidence casting doubt on this reason. Accordingly, Figueroa fails to show facts indicating the City's proffered reasons for her change in work duties and denial of pay were anything but legitimate and non-discriminatory. Therefore, the City's motion for summary judgment on Figueroa's Title VII claim of retaliation must be granted.
Throughout her briefs in opposition to summary judgment, Figueroa cites to strings of factual statements in her voluminous Local Rule 56.1(b)(3) statement of facts requiring denial of summary judgment. In some instances, she cites upwards of 70 paragraphs in support of a single factual assertion in her brief. The court's duty in resolving motions for summary judgment is not to scour copious statements of fact, but to resolve those material facts advanced in the briefs. In reviewing Figueroa's Rule 56.1(b)(3) statement, the court notes Figueroa states that Coburn ordered one of Figueroa's coworkers to change her starting time to a time different than Figueroa's. Figueroa objected to the change because she felt that by starting together, she and the coworker could better account for work orders; the result of the change was that Figueroa had to work her own shift and oversee three shifts. Figueroa 56.1(b)(3)6 ¶¶ 291-92. Figueroa does not claim this change was material, nor does she point to any facts indicating it might be so. Indeed, she does not even discuss this fact in her brief. Therefore, the court assumes the fact is immaterial to summary judgment.
V. Intentional Infliction of Emotion Distress Against Murtagh
Figueroa's sole claim against Murtagh is for intentional infliction of emotional distress. In order to successfully plead an action for intentional infliction of emotional distress under Illinois law, Figueroa must show: (1) extreme and outrageous conduct by Murtagh; (2) intent to cause, or a reckless disregard of the probability of causing, emotional distress; (3) that she suffered severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by Murtagh's outrageous conduct. Lewis v. Cotton, 932 F. Supp. 1116, 1118 (N.D.Ill. 1996); McGrath v. Fahey, 126 Ill.2d 78, 86, 127 Ill.Dec. 724, 727, 533 N.E.2d 806, 809 (Ill. 1988). "Liability has been found [only where the conduct] is so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency." Hamros v. Bethany Homes and Methodist Hosp. of Chicago, 894 F. Supp. 1176, 1180 (N.D.Ill. 1995) (citing Public Finance Corp. v. Davis, 66 Ill.2d 85, 89-90, 4 Ill.Dec. 652, 369 N.E.2d 765 [ 360 N.E.2d 765] (Ill. 1976)). In the employment context, a showing of "extreme and outrageous behavior is more strictly applied because `[i]n employment situations, personality conflicts, job performance evaluations, or job transfers are unavoidable and often result in stress. However, if such stress formed the basis for the tort of intentional infliction of emotional distress, virtually every employee would have a cause of action.'"Hamros, 894 F. Supp. at 1180 (citing Miller v. Equitable Life Assurance Society, 181 Asleep.3d 954, [ 181 Ill. App.3d 954], 957, 230 Ill.Dec. 558, 560, 937 N.E.2d 887, [ 537 N.E.2d 887], 889 (Ill.App.Ct. 1st Dist. 1989)).
Figueroa first contends Murtagh intentionally inflicted emotional distress because his conduct was extreme and outrageous. She argues Murtagh repeatedly insulted her based on her gender and race, spoke to her in a loud and offensive manner, and constantly used the word "fuck" in her presence. These acts do not constitute extreme and outrageous conduct. See Ross v. Litton Industrial Automation Systems, Inc., 1990 WL 71032, at *5 (N.D.Ill. April 27, 1990) (Conlon, J.) (granting summary judgment for defendant where: supervisor diminished communications with plaintiff until he ceased to acknowledge her presence; called plaintiff "stupid" and "senile" to other employees and directed them to ignore her supervision; removed important job responsibilities from plaintiff; staged opportunities to shock and humiliate her; and used profanity to criticize her on several prior occasions); Miller, 937 N.E.2d at 888-90 (dismissing claim where plaintiff alleged she was surrounded for approximately three and one-half years by supervisors and co-workers who were vulgar and uncooperative, where they yelled and slammed doors at her, where she was ignored and her job performance ridiculed, and was subject to an offensive touching by an employee, subject to vulgar remarks and encouraged by a district manager to use sex to sell insurance policies). Moreover, Figueroa acknowledged that Murtagh's conduct did not affect her ability to do her job.
Figueroa argues reliance upon Miller is improper becauseMiller, a case from the first district of the Illinois appellate court, has been rejected by the first district in a later case,Johnson v. Federal Reserve Bank, 199 Ill. App.3d 427; 557 N.E.2d 328 (1st Dist. 1990). Johnson did not reject Miller; indeed,Johnson did not even cite Miller. Rather, Johnson determined that on the facts of that case, the plaintiff stated a claim for intentional infliction of emotional distress. The plaintiff inJohnson alleged that his superiors used unauthorized procedures to access bank files. Johnson disclosed the use of these procedures to internal auditors, in contravention of Johnson's superiors' orders. Johnson also alleged that during a United States Treasury Bureau inspection, he disclosed other bank violations to the Bureau. Johnson alleged he was retaliated against when his superiors threatened to fire him, gave him an excessive work load, required him to work up to 20 hours a week longer than other employees in his department, denied him opportunities for advancement, undervalued the quality of his work and gave him poor performance reviews, and undercut his instructions to his direct subordinates. His superiors gave him an excessive workload and continued verbal abuse after the plaintiff returned from a one-year medical leave of absence which resulted from the harassment. The retaliation in Johnson is extreme; Figueroa's claims are clearly not comparable.
Figueroa responds that Murtagh's conduct was extreme and outrageous because Murtagh abused a position of complete authority over her. See Public Finance Corp. v. Davis, 66 Ill.2d 85, 89-90; 360 N.E.2d 765 (1976) ("the extreme and outrageous character of the conduct may arise from an abuse of a position or a relation with another which gives the actor actual or apparent authority over the other or power to affect his interest");Curcio v. Chinn Enterprises, Inc., 887 F. Supp. 190, 194 (N.D. Ill. 1995) ("conduct that may not otherwise be so considered may rise to the level of extreme and outrageous based on the amount of control that the defendant has over the plaintiff"). Figueroa fails to point to a genuine issue of material fact indicating Murtagh was in a position of authority over her. She argues Murtagh was considered the shop manager at North and Throop, and employees treated him as "the law" and did not question his authority. She asserts that beginning in January 1997, Murtagh supervised her time sheets. However, Figueroa fails to point to anything in the record indicating Murtagh had any real power over her. Murtagh reported to directors of operation Ernie Greb and Kevin Fitzpatrick. Greb and Fitzpatrick reported to Urian, the deputy commissioner, who in turn reported to Santella, the commissioner. Murtagh could recommend discipline of Figueroa to Greb, but that recommendation was subject to approval. But, Murtagh never disciplined Figueroa or instructed her supervisors to discipline her. Figueroa offers no evidence suggesting that Murtagh threatened to use any authority he might have to her detriment. In addition, Murtagh did not set Figueroa's hours of work, determine her pay, control her time off, assign her work, have the power to hire or fire her, or control her working conditions. Compare Conway v. Sheehan, 1999 U.S. Dist. LEXIS 6516 at **11-12 (N.D.Ill. April 28, 1999) (Conlon, J.) (denying summary judgment where supervisor had power to fire plaintiff and controlled plaintiff's promotions and raises)
Finally, Figueroa maintains the extreme and outrageous nature of Murtagh's conduct is demonstrated by his retaliation against her for complaining about sexual harassment to the sexual harassment office and filing suit. She asserts Murtagh became more hostile and menacing by swearing at her in an angry and aggressive tone; staring at her in a threatening manner and balling his fists; stating in front of the other service writers "the next time you're going to fucking cry to Urian make sure you tell him everything;" refusing to work with her on projects and sign her time sheet; and instructing other employees not to talk to her, as they would "get a lawsuit." Figueroa contends Murtagh only began to document her problems with the 24-hour report after she complained to the sexual harassment office, and he blamed her for problems for which she was not responsible. However, Murtagh did not sign Figueroa's time sheets for her absence in July 1997 because she did not report her absence to Murtagh but rather to Phil O'Conner. Figueroa's time sheets were signed by O'Conner. In addition, Murtagh and Figueroa's disagreements over the problems underlying the 24-hour reports were long-standing; Murtagh's criticism of Figueroa's handling of the reports began before Figueroa reported harassment. During the year preceding her complaint with the sexual harassment office, Murtagh and Figueroa discussed the 24-hour report three or four times a week. Murtagh blamed the service writers for problems with the report, while Figueroa blamed Murtagh and his employees for the problems. Finally, Murtagh's memos concerning Figueroa's performance on the 24-hour reports did not recommend discipline for Figueroa, and Figueroa does not dispute that the problems documented in the reports could have been caused by her service writer department. Thus, Figueroa's complaints of retaliation are not substantial. Murtagh's loud, aggressive, and rude demeanor are not extreme and outrageous conduct. Therefore, Murtagh's motion for summary judgment on Figueroa's claim of intentional infliction of emotional distress must be granted.
In passing, Urian argues Figueroa's intentional infliction of emotional distress claim is preempted by the Illinois Human Rights Act, 755 ILCS 5/8-111(c) ("IHRA"). Urian relies on the Illinois Supreme Court's decision in Maksimovic v. Tsogalis, 177 Ill.2d 511, 687 N.E.2d 21, 227 Ill. Dec. 98 (1997), which held IHPA bars common law tort claims inextricably linked to civil rights violations. However, Maksimovic stated that whether jurisdiction exists over a tort claim depends on whether "the tort claim is inextricably linked to a civil rights violation such that there is no independent basis for the action apart from the [IHRA] itself." 177 Ill.2d at 517. A plaintiff can maintain a tort claim "[t]o the extent that the plaintiff has alleged the elements [of the tort] without reference to the legal duties created by the [IHRA]." Id. Figueroa's claim against Urian is based upon the traditional tort of infliction of emotional distress and does not depend on duties created by IHRA.