find that the racially divisive remarks interfered with plaintiffs’ work performance. In addition,
neither Shaw nor Martin investigated the seven complaints of racial or other harassment. A jury
could find that Village unreasonably refused to remedy the hostile environment. Because there are
material questions of fact by which a jury could find that the work environment was objectively

hostile, summary judgment cannot be granted.

Because a material question of fact remains as to whether plaintiffs’ work environment was
hostile, although the parties did not do so, this court must assess whether a basis exists for Village’s

liability. The Supreme Court, in Burlington Industries, Inc. v, Ellerth, 524 U.S. 742 (1998), and
Faragher y. City of Boca Raton, 524 U.S. 775 (1998), set forth the test to be used to determine

whether an employer is vicariously liable for an employee’s conduct. The Seventh Circuit stated:

“An employer is subject to vicarious liability to a victimized employee for an
actionable hostile work environment created by a supervisor with immediate (or
successively higher) authority over the employee.” Vicarious liability automatically
applies when the harassing supervisor is either (1) “indisputably within that class of
an employer organization’s officials who may be treated as the organization’s proxy,”
or (2) “when the supervisor’s harassment culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassignment.” Absent either of
these situations, however, an employer may avoid vicarious liability by showing “(a)
that the employer exercised reasonable care to prevent and correct promptly any
[racially] harassing behavior, and (b) that the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.”

Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (citations omitted).

'5 Although Ellerth, Faragher, and Johnson all involve sexual harassment, the same
standard applies to racial hostile work environment claims as well. See Hardin v. S.C. Johnson
& Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999).

19


motivated abuse to vote at a township meeting. Pls.’ Mem. at 8, citing to Shaw Dep. at 257.)
Further, Shaw conceded that he believed his actions violated F. Kaupas’s free speech rights. (@efs.’
Stmt. of Facts J 111.) A material question of fact remains as to whether Shaw would have
eliminated the vehicle privilege in the absence of F. Kaupas’s vote. Consequently, summary

judgment must be denied.
I. unt II Section ‘aim Against Individual Defen

In order to state a claim under 42 U.S.C. § 1985(3), plaintiffs must demonstrate (1) the
existence of a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection
of the laws, (3) an act in furtherance of a conspiracy, and (4) an injury to person or property or a
deprivation of a right or privilege granted to U.S. citizens. Greenv. Benden, 281 F.3d 661, 665 (7th
Cir. 2002). In order to establish the existence of a conspiracy, plaintiffs must demonstrate that the
conspirators had an agreement to inflict injury or harm upon plaintiffs. Hernandez v. Joliet Police
Dept., 197 F.3d 256, 263 (7th Cir. 1999). In the case at hand, plaintiffs have not submitted any
evidence of a conspiracy between Shaw, Martin, or Box to deprive plaintiffs of equal protection of
the laws. In fact, plaintiffs spend one short paragraph on the issue and make sweeping
generalizations. (Pls.’ Mem. at 14-15.) Furthermore, under the intracorporate conspiracy doctrine,
aconspiracy cannot exist solely between members of the same entity. Payton v. Rush-Presbyterian-
St. Luke’s Med. Ctr. 184 F.3d 623, 632 (7th Cir. 1999). The Seventh Circuit has made clear that
this intracorporate conspiracy doctrine applies to municipal employees except in “egregious
circumstances.” Id, at 633. In Hartman v, Bd, of Trustees of Cmty. College, 4 F.3d 465 (7th
Cir.1993), the Seventh Circuit explained that such egregious circumstances do not include every
instance of invidiously discriminatory motivation but rather exist when employees are “motivated

13



to have been the first time she received such an e-mail video from Box. Moreover, the e-mail did
not contain any text and was from a co-worker, not a supervisor. This court finds that this video
harassment was not severe or pervasive. Second, this court finds that the video was not mailed to
R. Kaupas because of her sex. Box showed the same video to officer Tomany, a male, a few months
before Box e-mailed it to R. Kaupas. (Pls.’ 56.1(b)(3)(A) Resp. { 145.) Finally, and most
importantly, plaintiffs have not pointed to any evidence showing that Village can be held liable for
Box’s, a co-worker, alleged harassment. The undisputed facts show that R. Kaupas did not ever
report the e-mail video incident to Village. (Pls.’ 56.1(b)(3)(A) Resp. J 148.) Plaintiffs have not
introduced any evidence by which a factfinder could find that Village negligently failed to take
reasonable steps to discover or remedy Box’s harassment. Consequently, Village’s motion for

summary judgment on this claim is granted.
VI. count VI Intentional Infliction ti istress

This court is not exactly sure which plaintiff (or perhaps both) is bringing the pendent
intentional infliction of emotional distress (“IED”) claims. Even assuming it is both plaintiffs,
defendants are entitled to summary judgment for two reasons. First, plaintiffs do not in their
memorandum in response respond in any way to defendants’ arguments made in their opening
memorandum. Outside of the consolidated amended complaint, plaintiffs never address their IED
claims. As such, these claims are waived. See Thompson v. G.E.S., Exposition Serv., 2001 WL
321998, at *3 (N.D. Ill. Apr. 2, 2001). Second, even if thy are not waived, “(the Ilinois Human
Rights Act preempts tort claims that are ‘inextricably linked’ to allegations of sexual harassment and
requires that such claims be brought only before the Illinois Human Rights Commission.” Quantock
y. Shared Mktg. Servs., Inc,, 312 F.3d 899, 905 (7th Cir. 2002). Such reasoning presumably extends

23


an exempt employee and directed that he repay prior overtime payments to Village. F. Kaupas
maintained that former police chief Thomas Leonard (“Leonard”) had approved his overtime in the
past. Shaw claims that Leonard had never authorized paid overtime for F. Kaupas. (Defs.’ Stmt of
Facts 65.) However, as plaintiffs point out, Leonard testified that the policy had been that deputy
chiefs had the discretion to take financial compensation or compensatory time for any overtime
worked. (Pls.’ Mem. at 6.) Thereafter, because F. Kaupas had told Shaw that Leonard had
authorized overtime (which Shaw believed was a lie), Shaw demoted F. Kaupas to sergeant and

promoted Mel Easley (“Easley”), a black male, to deputy chief.‘

“ Plaintiffs’ counsel, in the memorandum filed in opposition to defendants’ motion, seems
to do everything in his power to try to confuse this court. First, throughout, plaintiffs refer to
“Kaupas.” Importantly, there are two Kaupas plaintiffs in this case. Often the context does not
readily make clear which plaintiff is being referred to. Second, plaintiffs often use the singular
possessive “plaintiff's” without any reference to which plaintiff. This court had trouble
determining which plaintiff was at issue or whether plaintiffs meant to use the plural possessive
“plaintiffs’.” Third, for example, plaintiffs state: ““Kaupas testified that Martin screamed at him .
. .(R. Kaupas Dep. pp. 66).” (Pls.” Mem. at 7 (emphasis added).) The dilemma created by this
phrase is that plaintiffs refer to “Kaupas” without specifying which one, then go on to state
“him’thus context would seem to indicate F. Kaupas—but then cite to Rosanne Kaupas’s
deposition for testimony that Fred Kaupas gave. Finally, and most troublesome, plaintiffs’
exhibits, which were not originally submitted to this court, are all but useless. Plaintiffs have
submitted to this court in chambers, but have not filed in the record, three stacks of papers which
purportedly correspond to their memorandum, 56.1(b) response, and 56.1(b) statement of
additional facts. In cover letters to this court accompanying each stack of documents, plaintiffs
state that “[t]he order of the documents track the cites in the pleadings.” Overlooking the fact
that the exhibits are not “pleadings,” see FED. R. Civ. P. 7(a), this order of presentation is of no
help to this court. Say for example that this court needed to find an exhibit cited to on page ten
of plaintiffs’ Rule 56.1(b) statement. How is this court to go about locating this exhibit? What
this court had to do was cull through each of the pages until it found the exhibit in questions.
Then, oftentimes, the deponent was not identified, preventing this court from verifying the
exhibit or plaintiffs’ statement. Tremendous judicial resources have been wasted.

4


The first question for this court is whether either Shaw or Martin qualifies as Village’s proxy.
With respect to Shaw at least, a question of material fact exists. As Village manager under the
managerial form of government, Shaw is the administrative head of Village and has extensive
powers and duties. See 65 ILCS 5/5-3-7. Shaw’s duties and responsibilities are similar to a
proprietor, partner, or corporate officer such that a factfinder could find that he is Village’s proxy.
Faragher, 524 U.S. at 789-90. The second question is whether one of plaintiffs’ supervisors'* took
a tangible employment action against plaintiffs. Wolf v. Northwest Ind. Symphony Soc’y, 250 F.3d
1136, 1141 (7th Cir. 2001). Ifso, Village is automatically vicariously liable for the supervisor’s acts.
Id, at 1142. A tangible employment action “constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” Id, (citation omitted). In the case at hand,
like in Wolf, plaintiffs were not terminated. They resigned, and now they claim to have been
constructively discharged. Although the Seventh Circuit has not determined whether constructive
discharge is a tangible employment action, this court need not address this issue because the

undisputed facts show that plaintiffs were not constructively discharged.

“An employee can assert a claim of constructive discharge when he is forced to resign
because his working conditions, from the standpoint of the reasonable employee, have become
unbearable.” Id, Further, “[a]bsent extraordinary conditions, ‘a complaining employee is expected
to remain on the job while seeking redress.” Id, at 1143 (citation omitted). “Working conditions

for constructive discharge must be even more egregious than the high standard for hostile work

'6 Although the parties do not address the question of plaintiffs’ supervisors, it appears
from the record that Martin and Shaw were supervisors within the meaning of Title VII.

20


A different analysis applies to the alleged hostile environment created by Box with his
racially divisive comments—again, an issue the parties do not address. Because Box was not a
supervisor, but rather a co-worker, courts apply the following standard in determining whether the
employer can be held liable: plaintiffs must show that the employer negligently failed to take
reasonable steps to discover or remedy the co-worker harassment. Haugerud v. Amery Sch. Dist.,
259 F.3d 678, 696-97 (7th Cir. 2001). As discussed above, Shaw and Martin attended the meeting
where Box made allegedly hostile remarks, Moreover, Shaw received complaints about Box. It is
thus disputed that Village did not negligently fail to discover or remedy the allege hostile

environment, As such, summary judgment is denied.
D. ostil nviro} x) (R. Kar

R. Kaupas alleges that the one-minute e-mail video from Box constituted sexual harassment.
The above racially hostile environment discussion applies with regard to R. Kaupas’s sexual
harassment claim. This claim fails for a several of reasons: (1) the harassment was not severe or

pervasive; (2) it was not “because of” sex; and (3) there is no basis for Village’s liability.

To prevail on her claim of sexual harassment based on hostile work environment, F. Kaupas
must establish that: (1) she was subjected to unwelcome sexual advances, requests for sexual favors,
or other verbal or physical conduct of a sexual nature; (2) the conduct was severe or pervasive
enough to create a hostile work environment; (3) the conduct was directed at her because of her sex;
and (4) there is a basis for employer liability. Hilt-Dyson v, City of Chicago, 282 F.3d 456, 462-63
(7th Cir.2002). Here, first, the undisputed facts show that R. Kaupas viewed the video one time

only, after which she immediately deleted it. The video was one-minute in duration. This appears

22


compensation for overtime, it could infer, based on the departmental meeting and the R. Kaupas
letter, which both occurred in close proximity to the overtime investigation, that Shaw demoted F.
Kaupas because of F. Kaupas’s race. Consequently, Village’s motion for summary judgment is

denied.
B. isparate Treatment (R. Kaupas)

R. Kaupas maintains that she was suspended by Martin because of her race. (Pls.’
56.1(b)(3)(A) Resp. ff 8, 11.) Although not explicit, this court infers that she too, like her husband,
proceeds under the direct method. Again, like F. Kaupas, areasonable jury could infer that Martin’s,
the decisionmaker with respect to R. Kaupas’s suspension, failure to intercede or admonish other
employees at the meeting was the same as him making the comments. Further, Martin did not
investigate R. Kaupas’s or the other employees’ complaints of race discrimination. A jury could
very well find that R. Kaupas did swear at Martin and this is why he suspended her. However, this
court cannot make findings regarding disputed facts on summary judgement. Because factual
questions exist as to whether Martin intentionally discriminated against R. Kaupas on the basis of

her race, summary judgment must be denied.

Cc. Hostile Work Environment (Race)

Both plaintiffs allege that their work environment at Village was so hostile that they were
constructively discharged. In this Circuit, to recover on a hostile work environment claim based on
race, an employee must show that: 1) he or she was subject to unwelcome harassment; 2) the
harassment was based on his or her race; 3) the harassment was severe or pervasive so as to alter the

conditions of the employee’s environment and create a hostile or abusive working environment; and

17


actually claims against Village itself. There is no indication that plaintiffs seek to hold Board
members liable in their individual capacities.

The Seventh Circuit has stated, citing Monell v. Department of Social Servs., 436 U.S. 658,
690-91 (1978), that:

[a] local governmental unit is subject to suit under 42 U.S.C. § 1983 because it is
deemed a “person” within the meaning of that provision. The Supreme Court has
consistently interpreted this language as barring respondeat superior liability on the
part of a local governmental unit. Rather, “it is when execution of a government's
policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983.” The caselaw has identified three instances
in which a municipality can be said to have violated the civil rights of a person
because of its policy: (1) an express policy that, when enforced, causes a
constitutional deprivation; (2) “a widespread practice that, although not authorized
by written law or express municipal policy, is ‘so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law;”” or (3) an allegation that the
constitutional injury was caused by a person with “final policymaking authority.”

Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994) (citations omitted). Clearly,

Village is not liable, simply as the employer, for the acts of Shaw, Martin, or Box. Plaintiffs attempt
to proceed only under the third prong and argue that Village can be held liable because Shaw and
Martin are final policymakers.

The determination as to whether a person is a final policymaker for § 1983 purposes is a
question of local law. Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992). Pursuant to Illinois
law, a municipal manager, such as Shaw, merely has the power to enforce municipal laws and
ordinances and has no right to vote at board meetings. 65 ILCS 5/5-3-7(1), (6). A final policymaker,
conversely, has the “authority to adopt rules for the conduct of government. Authority to make a
final decision need not imply authority to establish rules.” Auriemma, 957 F.2d at 401. According

to Illinois law, Shaw, and certainly Martin, did not have the authority to adopt rules for the conduct


to use their personal vehicles and then be reimbursed for mileage by Village. Inhis deposition, Shaw
stated that he believed removing F. Kaupas’s vehicle violated F. Kaupas’s First Amendment free
speech rights. (Defs.’ Stmt. of Facts § 111.) After a grievance was filed on F. Kaupas’s behalf,
Shaw reinstated F, Kaupas’s take-home vehicle privileges.

In December 2001, days after Village received R. Kaupas’s EEOC complaint, Martin,
perhaps upon a request from Shaw for information, instructed F. Kaupas to prepare a statistical
Teport on certain investigations covering the years 1999, 2000, and 2001. Shaw stated at his
deposition that the request for this data “doesn’t make any sense to me.” (Pls.’ Mem. at 12.) It took
F. Kaupas eighty hours to complete the data collection manually, even though such information was
readily available on the computer.

On January 2, 2002, F. Kaupas submitted his letter of resignation, effective July 15, 2002.
In May, Martin ordered F. Kaupas, along with two other officers, to inventory the evidence locker.
At some point in the spring, Box stated that “it’s our time to shine. Fred’s got to go. I’m going to
get his job.” (Defs.’ Stmt. of Facts { 143.) After F. Kaupas’s retirement, Box was promoted to head
of the investigations division. A few months prior to his retirement, Village removed F. Kaupas’s
name placard from his door. By memorandum dated May 31, 2002, F. Kaupas was placed on
administrative leave effective June 1 and was paid through his retirement. Shaw made the decision
to place F. Kaupas on administrative leave because Shaw believed that F. Kaupas was hostile to the
Village for what the Village had done to him.

Finally, on June 4, 2002, R. Kaupas received a pornographic e-mail from Box. Attached to
the e-mail was a video which depicted a naked man defecating in a naked woman’s mouth, The

video was approximately one minute in length. After viewing the video once, R. Kaupas deleted it.


F. Kaupas filed a complaint with the Illinois Labor Board regarding the overtime pay dispute.
After receiving the complaint, Shaw distributed it along with a cover memorandum to all employees*
emphasizing that racial and sexual discrimination and harassment would not be tolerated and
requesting employees to report prior instances of racial or sexual harassment to him. Within the next
week, seven police department employees sent memos to Shaw. Because he believed the memos
were false and baseless, Martin did not investigate any of the incidents set forth in the memos. In
addition, Shaw believed they lacked merit and took no further action.

R. Kaupas saw two co-workers reading the memo from Shaw and F. Kaupas’s complaint.
She became upset and had a confrontation with Martin. Martin heard her mumble “mother fucker”
under her breath. As a result, Martin suspended R. Kaupas for two days without pay. R. Kaupas
denies making this comment.

On September 6, 2001, plaintiffs attended a Monee Township meeting to vote on a
teferendum, Plaintiffs drove F. Kaupas’s departmental take-home vehicle, which Village had
allowed F. Kaupas to use since approximately 1997 or 1998. Village’s employee manual stated that
“[a}lthough Village employees are encouraged to participate in political activities, they may not do
so while they are on duty nor may they use their position or Village resources for political purposes.”
(Defs.’ Stmt. of Facts { 106.) Shaw admitted that it was not deemed politically motivated abuse to
vote. In response to trustees’ complaints about F. Kaupas driving his take-home vehicle to vote,
Shaw amended Village’s take-home vehicle policy. Under the new policy, employees who were not

residents of Village, including F. Kaupas, were not allowed to use a Village vehicle but instead were

5 It is not clear whether this was all Village employees or just those who worked in the
police department.


4) there is a basis for employer liability. Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1043
(7th Cir. 2000). The primary issues in the case at hand are whether plaintiffs’ work environment was

actionably hostile and whether Village can be held liable.

“[P]iaintiff[s] must . . . show that [their] work environment was both subjectively and
objectively hostile.” McPhaul, 226 F.3d at 566. An objectively hostile environment is one that a
reasonable person would find hostile or abusive. Id, at 567. In making this assessment, courts
consider the totality of the circumstances, including “‘the frequency of the discriminatory conduct;
its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id. (citations omitted).
In the case at hand, clearly both plaintiffs subjectively felt that their work environment at Village was
hostile. Plaintiffs argue that the following made their work environments objectively hostile: the
departmental meeting and lack of investigation of race-related complaints. According to several
employees, the Village police department was rife with racial hostility, i.¢., racial hostility was
pervasive. Moreover, the comments made at the departmental meeting were more than just mildly
offensive utterances, teasing, or offhand remarks. Comments such as “us vs. them,” “our turn to
shine,” and “more of us than there are of them now” imply serious racial division and segregation.
Plaintiffs could reasonably have believed that their jobs—and maybe safety—were in jeopardy when
black employees said things like “these white mother fuckers have to go,” and supervisors Shaw and.

Martin stood by and did nothing to disavow themselves or Village of the comments. A jury could

\ Defendants argue in their reply that such opinion testimony is not admissible.
However, the employees are not opining as to the motivation of Village decisionmakers; rather,
they are presenting evidence based on their perceptions of the employment environment. Such
evidence is admissible under Federal Rule of Evidence 701.

18


ANALYSIS®

In this section of the opinion, this court will analyze the claims it has construed from
plaintiffs’ consolidated amended complaint. Plaintiffs’ unclear allegations have unnecessarily
complicated this task. This court had difficulty determining which plaintiff (or both) was suing
which defendant (or defendants) on what claim. Moreover, in their summary judgment materials,
defendants and especially plaintiffs address a few of the claims in such a cursory way that this court
wonders if they are really claims at issue at all. Nonetheless, this court will address what appears
to be all of the claims. Unless otherwise noted, both F. Kaupas and R. Kaupas advance the claim
under discussion.
IL Count I Section 1983 Claims

A. Section 1983 Claims Against Village and Board

Pursuant to 42 U.S.C. § 1983, plaintiffs advance claims against Village; Board; and Shaw,
Martin, and Box in their individual and official capacities. An official capacity claim against a
governmental official is the same as a claim against the governmental entity. Kentucky vy. Graham,
473 U.S. 159, 165-66 (1985). Thus, plaintiffs’ claims against Shaw, Martin, and Box in their official

capacities are actually claims against Village. Moreover, plaintiffs’ claims against the Board are

© It certainly would have been helpful to this court if the parties would have properly
drafted their memoranda. Ideally, the memorandum applies the law to the specific facts of the
case. Malec, 191 F.R.D. at 585. Here, defendants’ memorandum is overflowing with case law
but barely mentions the facts, and, as explained above, when facts are discussed, the record is not
cited to. On the other extreme, plaintiffs’ memorandum is basically a recitation of the facts and
some argument. In fact, their memorandum reads almost like their statement of additional
undisputed facts. Conspicuously absent from plaintiffs’ memorandum is any case authority in
support of their position. Once again, plaintiffs’ and defendants’ counsel’s failure to comply
with the local rules has caused this court to expend much more time than should have been
necessary to resolve this motion.



to IED claims predicated on racial harassment as well. Because any IED claims plaintiffs may have
stem directly from their employment relationship with Village and relate to racial and/or sexual

harassment, they are preempted. Therefore, defendants’ motion for summary judgment is granted.

Vil. Count VU Loss of Consortium Claim

R. Kaupas advances a loss of consortium claim. Again, as with the IED claim, because
plaintiffs do not respond to defendants’ arguments, introduce any evidence, or address this claim at
all, it is deemed waived, Plaintiffs do not advance any arguments or evidence to show that any issue
of material fact exists with respect to this claim. Consequently, defendants’ motion for summary
judgment is granted.

CONCLUSION

For the reasons discussed above, summary judgment is granted in part and denied in part.
As to the § 1983 claims against Village and Board (count I), § 1983 equal protection disparate
treatment claim against Box (count I), § 1983 equal protection hostile work environment claim
against Box (count I), R. Kaupas’s 1st Amendment retaliation claim (count J), all § 1985 claims
(count ID), all § 1986 claims (count Il), R. Kaupas’s sexual harassment claim (count V), intentional
infliction of emotional distress claims (count VI), and R. Kaupas’s loss of consortium claim (count

VII), summary judgment is granted. As to the remaining claims, summary judgment is denied.

The pre-trial schedule previously set is modified as follows: the final pretrial order is due
on or before September 9, 2003; motions in limine are due also on September 9 and should be filed
separately from the final pretrial order and separately from one another; responses to motions in

limine, if any, are to be filed no later than September 16, 2003; the final pretrial conference is set for

24


‘Minute Order Form (06197)

United States District Court, Northern District of Illinois

Nive Magierateduage | __ James F. Holderman “than Assigned Judge

CASE NUMBER 02 C 3674 DATE 8/29/2003
CASE KAUPAS et al vs. VILLAGE OF UNIVERSITY PARK et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(1) 0 Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due _____.

@) Oo Answer brief to motion due. . Reply to answer briefdue_

@ Oa Ruling/Hearingon___setfor___—_at

(5) Oo Status hearing[held/continued to] [set for/re-set for}on___—ssetfor___—_—at

(()) Oo Pretrial conference[held/continued to] [set for/re-set for]on___setfor__—_at__—.

(0) Oo Trial[set for/re-set for]on___at

(8) go {Bench/Jury trial] [Hearing] held/continuedto__—_—aat

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4m) UO Local Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).

ao (Other docket entry} Defendants’ motion for summary judgment is granted in part and denied in
part. The previously set schedule is modified as follows: The parties shall submit the joint final pretrial
order with all motions in limine and supporting memoranda by September 9, 2003. Responses are to be
filed by September 16, 2003. Final pretrial conference is reset to September 23, 2003 at 4:30 pm. Trial
date of September 29, 2003 shall stand.

a) [For further detail see order attached to the original minute order.]
No notices required, advised in open court,

No notices required.
U | Notices mailed by judge's staff.

surmber of notices

~ | Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form, 48NOD LayLSia “sn
Wu319

Copy to judge/magistrate judge.

courtroom O08 WW CE on eo |___ ae itet noice |
8 fous DNA II wos ys 81
x mun WDaldBme received in
: central Clerk's Office malig depuy ala



F. Kaupas alleges that Shaw discriminated against him on the basis of race with regards to
the terms and conditions of his employment by demoting him and demanding he reimburse Village
for allegedly improper overtime pay.’ R. Kaupas asserts that Martin suspended her because of her
race.’ The undisputed facts show that Box was not personally involved in making any of these
decisions; thus, summary judgment is granted in his favor on the § 1983 disparate treatment claims.
To be clear, and as is explained in detail below, with respect to Shaw (for F. Kaupas’s claim) and
Martin (for R. Kaupas’s claim), because issues of material fact exist whereby a jury could infer

intentional discrimination, summary judgment must be denied.

2. Hostile Work Environment

Plaintiffs argue that Shaw, Martin, and Box personally created a racially hostile work
environment in violation of the Equal Protection Clause and § 1983. R. Kaupas asserts that the
individual defendants created a sexually hostile work environment. As with the § 1983 equal
protection disparate treatment claims above, § 1983 equal protection hostile work environment
claims follow the same standard as Title VII. McPhaul v. Bd. of Comm’rs of Madison County, 226
F.3d 558, 566 n.6 (7th Cir. 2000). This court will discuss fully plaintiffs’ hostile work environment

claims below.’ To be clear, though, because material facts are in dispute as to whether Shaw and/or

Martin created a hostile environment, summary judgment is denied as to the racially hostile work

7, Kaupas does not actually specify against which defendants this § 1983 claim is
brought, but the undisputed facts show that only Shaw was involved in making these decisions,
and thus potentially only he can be held liable.

5 Again, R. Kaupas does not indicate who the defendant is, but because only Martin was
involved in making the decision to suspend her, he is the only potentially liable defendant.

9 Only the first part of the Title VII analysis, i.e., whether the individual defendants
personally created a subjectively and objectively hostile environment, is relevant to § 1983
liability.

i


of Village. Only the Board possessed such power. Therefore, this court finds that neither Shaw nor
Martin is a final policymaker for § 1983 purposes.

The only action of the Board, the final policymaker of Village, at issue in this case is its
passage of an ordinance reducing the number of deputy chiefs of police from two to one. Plaintiffs
have not pointed to any evidence establishing that this express policy caused F. Kaupas to lose his
job or that such ordinance was based on racial animus. Consequently, because plaintiffs have no
basis in the law to hold Village or Board liable, Village and Board are entitled to summary judgment
on all § 1983 claims against them.

B. ecti 83 Equal Protecti ims Against Individual Defen:

1 Disparate Treatment

Plaintiffs assert that defendants are personally liable for discriminating against them
because of their race in violation of the Fourteenth Amendment's Equal Protection Clause and 42
U.S.C. § 1983. As the Seventh Circuit recently explained, “the same standards for proving
intentional discrimination apply to Title VII and § 1983 equal protection.” Williams v. Seniff, No.
02-1231, slip op. at 22 n.13 (7th Cir. Aug. 20, 2003). Further, like Title VII, plaintiffs “can prevail
on [their] equal protection claim[s] by offering direct proof of discriminatory intent, or [they] may
prove discriminatory intent by circumstantial evidence.” Id, at 21. Therefore, the Title VI disparate

treatment discussion below is applicable to plaintiffs’ equal protection disparate treatment claims
here. However, “[s]ection 1983 creates a cause of action based upon personal liability and
predicated upon fault. An individual cannot be held liable in a § 1983 action unless he caused or
participated in an alleged constitutional deprivation.” Wolf-Lillie y. Sonquist, 699 F.2d 864, 869
(7th Cir. 1983),

10


She finished work that day but never returned. She tendered her resignation a few days later. Her
resignation letter did not mention the e-mail from Box.
STANDARD OF REVIEW

Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the evidence of the
nonmovants must be believed and all justifiable inferences must be drawn in the nonmovants’ favor.

Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This court’s function is not to weigh

the evidence and determine the truth of the matter, but to determine whether there is a genuine issue
for trial. A party who bears the burden of proof on a particular issue, however, may not rest on its
pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine
issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). As
stated above, it is not the function of this court to scour the record in search of evidence to defeat a
motion for summary judgment; the nonmoving party must identify with reasonable particularity the
evidence upon which that party relies. Bombard v, Fort Wayne Newspapers, Inc., 92 F.3d 560, 562
(7th Cir. 1996). The evidence relied upon must be competent evidence of a type otherwise

admissible at trial. Id,


environment because ‘in the ‘ordinary’ case, an employee is expected to remain employed while
seeking redress.”” Tutman v. WBBM-TV, Inc/CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000)
(citation omitted). In the case at hand, although questions of material fact exists as to whether the
work environment was hostile, this court finds that no questions of material fact remain as to
whether plaintiffs’ situation was so extreme as to warrant their resignation as the only altemative to
avoiding or overcoming the hostile environment. Extraordinary circumstances were not present such
that plaintiffs could not remain on the job. Admittedly, the environment was probably

uncomfortable for plaintiffs, but they could have sought other avenues of redress other than quitting.

Because neither Martin nor Shaw took tangible employment actions against plaintiffs, the
question becomes whether Village is entitled to the affirmative defense—a question Village never
addresses in its summary judgment papers. Did Village exercise reasonable care to prevent and
correct promptly any the racially harassing behavior? Clearly, issues of material fact remain. The
spatse record on this issue evinces that supervisors Shaw and Martin took little if any action to
prevent future harassment. Although Shaw distributed a memorandum to employees and sought
information on instances of discrimination, neither he nor Martin took any action on the seven letters
Shaw received. There are material issues of fact as to whether these claims were frivolous and
baseless and whether Shaw and/or Martin took appropriate actions to remedy the allegedly hostile
environment. Moreover, viewing the facts in the light most favorable to plaintiffs, as this court must,
there are questions of fact as to whether Shaw or Martin corrected the allegedly hostile behavior at
the June 6 departmental meeting. Because Village has not clearly advanced any evidence in support
of its affirmative defense and because material factual issues remain, summary judgment must be

denied.

21


not been previously requested of F. Kaupas by any prior police chief. Martin did not inquire about
the data until December 2001.

On June 6, 2001, Shaw and Martin convened a mandatory meeting of all police department
personnel to address morale and training issues. At the time of the meeting, approximately half of
the full time officers were white and half black. Box and a couple of other black officers had been
drinking prior to attending the meeting. The meeting became heated with black officers saying such
things as “us vs. them,” “our turn to shine,” “I get so mad I’d cap people except I would go to jail,”
and “more of us than there are of them now.” (Pls.’ Mem. at 4.3) Immediately after the meeting,
Box said, “these white mother fuckers have to go.” (Defs.’ Stmt. of Facts | 42.) Neither Shaw nor
Martin, who both presided over the meeting, interceded to control such comments or admonished
any officers. The following day, at a meeting of the Board of Police and Fire Commissioners,
chairperson Gloria Barnett-Brookins (“Barnett-Brookings”) said that “we are not going to hire any
more white boys.” (Pls.’ Mem. at 4.)

After the June 6 department meeting, on June 20, R. Kaupas sent a letter of complaint signed
by her and six other department members to Martin. She outlined what happened at the meeting and
requested that Martin “take appropriate action to this problem immediately.” (Pls.’ Mem. at 5.)
About two-and-a-half weeks later, Village Finance Direct Steven Rosenquist (“Rosenquist”) inquired

of Shaw as to whether F. Kaupas was entitled to overtime pay. Shaw determined that F. Kaupas was

> Pursuant to Local Rule 56.1, in their memoranda parties are supposed to cite to their
statements of undisputed facts or responses, not directly to the record. Plaintiffs, however, cite
directly to the record in their memorandum. Worse yet, defendants do not cite to any record
whatsoever in their memorandum! For example, they quote from the Village policy manual but
provide no citation. (Defs.’ Mem. at 11.) Although not required to do so, this court will consider
the evidence presented in plaintiffs’ memorandum and has done its best to find the appropriate
portions of the record to support defendants’ uncited statements.

3



solely by personal bias.” Id, at 470 (emphasis added). Here, plaintiffs have not shown that the
individual defendants were motivated solely by personal bias. Consequently, summary judgment

as to plaintiffs’ § 1985 claims is granted.

DL. Count Il Section 1986 Claim Against Individual Defendants

42. U.S.C. § 1986 establishes a cause of action against any person who fails to prevent a
conspiracy to violate civil rights. Because, as stated above, as a matter of law, no conspiracy existed
between Shaw, Martin, and Box, they cannot be held liable for failing to prevent a conspiracy.

Therefore, defendants’ motion for summary judgment on this claim is granted.

IV. Count IV Section 1981 Claims Against Village

Claims pursuant to 42 U.S.C. § 1981 are analyzed under the same standards as Title VIL.

Logan v. Kautex Textron N. Am., 259 F.3d 635, 637 n.1 (7th Cir. 2001). As such, the Title VI

analysis below applies to plaintiffs’ § 1981 claims.

Vv. Count V Title VII Claims Against Village

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-15, itis unlawful
for an employer, such as Village, “to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race... [or] sex... .” 42 U.S.C. § 2000e-2(a)(1). Plaintiffs advance

both individual disparate treatment and hostile work environment claims.
A. Disparate Treatment (F. Kaupas)
F. Kaupas alleges that he was demoted from deputy chief to sergeant on the basis of his race

in violation of Title VIL. He has two methods available to him to prove that Village discriminated

14


over in favor of a person not having the forbidden characteristic and that the
employer’s stated reason for its decision is “unworthy of belief, a mere pretext for
discrimination.” The latter category “is substantially the same as the evidence
required” under the indirect method.

Id. (citations omitted). It appears that all of F. Kaupas’s evidence falls within the first category.

Viewing all the evidence in the light most favorable to R. Kaupas, this court finds that
material issues of fact exist. A factfinder could infer that Village intentionally discriminated against
him because of his race in demoting him. First, a jury could infer that Shaw, the decisionmaker with
respect to the demotion, by remaining silent and not reprimanding, remedying, or correcting
employees’ comments at the meeting from which a person could infer racial bias, acquiesced in the
employees’ comments. In other words, Shaw’s silence equaled concurrence. A jury could infer that
by not speaking up or admonishing the allegedly harassing black employees and allowing them to
go on and on that Shaw, who is black, “said” such racially divisive things as “us vs. them,” “our turn
to shine,” “more of us than there are of them now,” and “these white mother fuckers have to go.”
Second, a month or so after the departmental meeting, and two-and-a-half weeks after R. Kaupas
submitted a letter of complaint to Martin, Shaw, for the first time, questioned F. Kaupas’s taking of
overtime pay. Shaw then demoted F. Kaupas because F, Kaupas allegedly lied about former chief
Leonard approving such overtime. The record shows that material facts are in dispute about what
Leonard said to F. Kaupas about prior practices and to deputy chief Mel Easley (“Easley”) during

Easley’s investigation of the overtime. Ifa jury believes Leonard that he told F. Kaupas and/or

Easley that deputy chiefs during Leonard’s tenure as chief were given the option of taking financial

'3 The comment of Bamett-Brookins is not circumstantial evidence of intentional
discrimination because it was not made by Shaw, the decisionmaker, nor can it be attributable to
him.

16


Federal Rule of Civil Procedure 56, for summary judgment. For the reasons explained below,
defendants’ motion is granted in part and denied in part.
STATEMENT OF FACTS?

Viewing all facts in the light most favorable to plaintiffs and construing all ambiguities in
their favor, in January 2001, Board amended a Village ordinance reducing the number of deputy
chief of police positions from two to one. At this time, F. Kaupas, a white male, was the deputy
chief of police. The acting chief at the time (and now current chief), Martin, is a black male. Village
manager Shaw and officer (now sergeant) Box also are black males. R. Kaupas is a white female
and worked for Village as a civilian employee in the police department.

On March 16, 2001, Martin ordered F, Kaupas to provide Martin with a list of all pending

investigations and thereafter provide him with a weekly status report. This weekly status report had

addition, this court has interpreted each enumerated “claim” to actually be a “count” and will
refer to each as such. Thus, the consolidated amended complaint has seven counts, although it
has many more claims.

? The facts assumed to be true for purposes of this summary judgment motion are derived
in part from defendants’ Local Rule 56.1(a) statement of facts and plaintiffs’ response thereto
and plaintiffs’ Local Rule 56.1(b) statement of facts and defendants’ response thereto. Before
proceeding, however, this court strongly urges both counsel for plaintiffs and counsel for
defendants to review Local Rule 56.1 and Malec v, Sanford, 191 F.R.D. 581 (N.D. Ill. 2000).
Both counsel failed miserably to comply with Rule 56.1. Because of this, the record on summary
judgment is convoluted and confusing. By failing to comply with the Local Rules, the parties
have made it very difficult for this court to decipher the claims at hand, the relevant issues, and
the parties’ arguments. It is not this court’s obligation to scour the record, but because both
parties have not performed their obligations, this courts has no choice.

In the case at hand, neither party set forth a statement of facts in its respective
memorandum. Defendants state that “[t]he page limitations set forth by Local Rule do not allow
a detailed restatement of the facts and undisputed evidence and the facts swill [sic] simply be
highlighted in the argument below.” (Defs’ Mem. at 1.) This comment is without merit, as
defendants could have sought leave to file a brief in excess of fifteen pages.

2


September 23, 2003, at 4:30 p.m. Trial remains set to commence at 9:00 a.m. on September 29,

2003.

To make it patently clear for trial preparation purposes, this court has summarized the

remaining claims in the table below, The parties are strongly encouraged to discuss settlement.

Count | Claim Plaintiff(s) | Defendant(s)
I Section 1983 disparate treatment F. Kaupas | Shaw

I Section 1983 disparate treatment R. Kaupas | Martin

I Section 1983 hostile work environment (race) | Both Shaw, Martin
I Section 1983 1st Amendment retaliation F.Kaupas | Shaw

IV Section 1981 disparate treatment F. Kaupas_ | Village

IV Section 1981 disparate treatment R. Kaupas | Village

IV Section 1981 hostile work environment Both Village

Vv Title VII disparate treatment F. Kaupas_ | Village

Vv Title VII disparate treatment R. Kaupas_ | Village

Vv Title VII hostile work environment (race) Both Village

ENTER:

2, Heeberene

AMES F. HOLDERMAN
United States District Judge

DATE: August 29, 2003

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Fred Kaupas and Rosanne M. Kaupas, as
individuals,

Plaintiffs,

v. No. 02 C 3674
Village of University Park, a municipal
corporation; Board of Trustees of the Village
of University Park, a body politic; Village
Manager Elbert Shaw, individually and in his
official capacity, Police Chief Craig Martin,
individually and in his official capacity;
Police Sergeant Gregory Box, individually
and in his official capacity; and other
unknown conspirators,

Defendants,

ww SS SS SSeS ewer rer

MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, District Judge:

On January 14, 2003, plaintiffs Fred Kaupas (“F. Kaupas”) and Rosanne M. Kaupas (“R.
Kaupas”) filed a seven-“claim” consolidated amended complaint against defendants Village of
University Park (“Village”), Board of Trustees of the Village of University Park (“Board”), Elbert
Shaw (“Shaw”), Craig Martin (“Martin”), and Gregory Box (“Box”) alleging numerous reverse

discrimination claims described in detail below.' On July 18, 2003, defendants moved, pursuant to

' Plaintiffs failed to comply with Federal Rule of Civil Procedure 10(b), which requires
each claim founded on a separate transaction or occurrence to be set forth in a separate count.
This is but one of many transgressions of the Rules of Civil Procedure or Local Rules. This court
has done its best to determine the claims advanced and will explain them in the text below. In

39

1


environment claims.” However, summary judgment is granted with regard to the sexually hostile
work environment.

c. ection 1983 First Amendment Retaliation Clai: ainst Shaw"

To prevail on a First Amendment retaliation claim, F. Kaupas” must show that: (1) his
speech was a matter of public concern; and (2) the speech played at least a substantial part in Shaw’s
decision to remove F. Kaupas’s take-home vehicle privileges. If F. Kaupas can carry his burden on
these two elements, Shaw can prevail only if he proves by a preponderance of the evidence that
Village’s interest, as an employer, in efficiently providing government services outweighs F.
Kaupas’s First Amendment interests, or if Shaw can prove that Village would have disciplined F.
Kaupas even in the absence of the speech. Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).

In the case at hand, the speech at issue is F. Kaupas’s voting at a township meeting. With respect
to the prima facie case, Shaw admitted that the voting did not violate departmental policy, i.¢., was
not politically motivated, and that it played a part in Shaw’s decision to amend the Village policy.
Shaw argues, however, that driving the vehicle to vote violated departmental policy. Shaw’s own

deposition testimony contradicts this argument. Shaw admitted that it was not deemed politically

'© With respect to Box, summary judgment on this § 1983 claim is granted. The
undisputed facts show that at most he made a comment or two, such as “these white mother
fuckers have to go.” Although crude and highly offensive, such an isolated comment does not by
itself create an objectively hostile work environment. As to supervisors Shaw and Martin, as will
be discussed in the text below, they not only acquiesced in numerous racially divisive comments
but also failed to take any actions to remedy the problems. Consequently, a jury could find that
they personally created an objectively hostile environment.

11 Because the undisputed facts show that Shaw alone, and not Martin or Box, had
anything to do with the Village vehicle policy, only Shaw potentially can be held liable under §
1983.

"2 Although it appears that R. Kaupas may have alleged a First Amendment violation, she
has produced absolutely no evidence in support of her claim. Therefore, even if such claim is in
fact alleged, Shaw is entitled to summary judgment in his favor.

12



against him because of race: (1) the direct method or (2) the indirect method. Venturelli v. ARC
City. Servs., Inc., 336 F.3d 606, 612 (7th Cir. 2003). F. Kaupas clearly proceeds under only the
first of these, the direct method. (Pls.’ Mem. at 2 (“Our memorandum will focus on the direct

method.”).) As such, this court will not address F, Kaupas’s claim under the indirect method.

Under the direct method, two types of evidence are permissible: direct and circumstantial.
Venturelli, 336 F.3d at 612. Direct evidence includes evidence that if believed would prove the fact
in question “without reliance on inference or presumption.” Id, The Seventh Circuit has pointed out
that “[dJirect evidence ‘essentially requires an admission by the decision-maker that his actions were
based upon the prohibited animus.”” Id, (citation omitted). Circumstantial evidence is evidence that
allows a jury to infer intentional discrimination by the decisionmaker. Id, F. Kaupas claims that he
has both “direct and circumstantial” evidence. (Pls.’ Mem. at 2.) However, he fails to in any way
classify his evidence or attempt to distinguish which evidence he believes is direct and which
circumstantial. He apparently leaves this task to this court. Consequently, this court finds that F.

Kaupas’s evidence is best characterized as circumstantial evidence and will be analyzed as such.

The Seventh Circuit has identified three categories of circumstantial evidence under the direct
method approach, “each of which may suffice by itself to establish discrimination, or may be used
in conjunction with one or both of the other categories.” Venturelli, 336 F.3d at 615. According to

Venturelli:

The first category consists of “suspicious timing, ambiguous statements oral or
written, behavior toward or comments directed at other employees in the protected
group, and other bits and pieces from which an inference of discriminatory intent
might be drawn.” The second type requires a showing that the employer
systematically treated other, similarly situated, [black] employees better. The third
type is evidence that the plaintiff was qualified for the position in question but passed

15