in acts of sexual conduct with Plaintiff. Defs.’ 56.1 65. Further, other employees interviewed
by Stroger stated that Plaintiff and Torres were engaged in a consensual relationship. P1.’s Ex.
19, Stroger Report. Stroger did not ask any specific questions concerning any harassing conduct
involving Torres but, rather, asked open-ended questions concerning harassment in general.
Defs.’ Ex. 31, Stroger Dep. at 16-20. Some employees responded and discussed other acts of
possible misconduct that did not involve Plaintiff and Torres. Defs.’ Ex. 31, Stroger Dep. at 19-
20. Stroger concluded that Torres did not sexually harass Plaintiff because Plaintiff and Torres
appeared to have a consensual relationship. Defs.’ 56.1 67. Stroger recommended discipline
for both Plaintiff and Torres. Defs.’ 56.1 § 70.

The Secretary of State’s Office has a zero-tolerance against sexual harassment and a
separate policy against disorderly conduct on State property which impedes work; both policies
provide discharge as a remedy for infractions. Defs.’ 56.1 4 18,22. Any employee harassed
“shall immediately report the incident to the employee’s supervisor.” Defs.’ 56.1919. Ifan
employee is not comfortable discussing the harassment with her supervisor, the employee could
file a report with her department director, the Equal Employment Opportunity Officer, the
Director of the Department of Personnel, or the Inspector General. Defs.’ 56.1 4 20. Plaintiff
received both policies. Defs.’ 56.1 9 23-24.

Based on these investigations and the policy against misconduct, it was recommended
that both Plaintiff and Torres be discharged. Defs.’ 56.1 § 71; Pl.’s Ex. 23. This request was
approved and was forwarded to the Director of Personnel. Defs.’ 56.1 § 73-74; Defs.’ Ex. 4.
Thereafter, Plaintiff was interviewed concerning the findings of the investigations. Defs.’ 56.1

76; Defs.’ Ex. 21. The proposed terminations were then forwarded for higher-level approval.


may then produce a legitimate, non-discriminatory reason for taking the adverse employment
action. Stone, 281 F.3d at 642-43. Plaintiff may then rebut this legitimate, non-discriminatory
reason by demonstrating that motive was pretextual. Stone, 281 F.3d at 643.

Plaintiff argues that Ordonez-Garcia and Cortez are similarly situated, as all three
employees allegedly committed inappropriate sexual conduct in the workplace. As discussed
above, Ordonez-Garcia and Cortez were not similarly situated to Plaintiff.

Even if Plaintiff proved a prima facie case for the purposes of summary judgment,
Defendants have presented a legitimate, non-discriminatory reason for Plaintiff's discharge —
Plaintiff's sexual conduct. Plaintiff may establish this reason is pretextual through evidence
demonstrating the employer’s reason for termination was: (1) more likely than not motivated by
a retaliatory motive or (2) not credible because the reason is factually baseless, not the actual
motivation for the discharge, or insufficient to motivate the termination. Jackson v. E.J. Brach
Corp., 176 F.3d 971, 983 (7th Cir. 1999), In this case, Plaintiff's evidence of pretext is identical
to the circumstantial evidence of discrimination that was considered above. As such, no genuine
issue of material fact exists as to whether Plaintiff has failed to demonstrate Defendants’ reason
for terminating Plaintiff was pretextual. Rather, the evidence in this regard is to the contrary and

supports the Defendants’ stated reasons.

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harassment, (4) Plaintiff's supervisor’s repeated decisions to discipline Plaintiff for tardiness,
(5) the investigator’s failure to ask direct questions concerning Torres’s conduct, and (6) the
overall bias of the investigation against Plaintiff.

Plaintiff first contends the investigations were highly suspicious because Ordonez-Garcia
and Cortez lied to the investigators to deflect blame from the allegations contained in the
Lindemann memorandum. It is undisputed, though, that Ordonez-Garcia and Cortez were not the
only employees who observed Plaintiff engaging in inappropriate conduct with Torres.

Plaintiff also claims that Defendants failed to investigate the allegations in the Lindemann
memorandum relating to similarly situated employees despite Defendants’ knowledge of the
allegations contained therein. However, Plaintiff has failed to demonstrate that a genuine issue
of material fact exists as to whether Ordonez-Garcia or Cortez were similarly situated employees.

For Plaintiff to demonstrate that Ordonez-Garcia and Cortez were similarly situated, each
employee must have “dealt with the same supervisor, [been] subject to the same standards, and
had engaged in similar conduct without such differentiating or mitigating circumstances as would
distinguish [her] conduct or [her] employer’s treatment.” Peele v. Country Mut. Ins. Co., 288
F.3d 319, 330 (7th Cir. 2002). Plaintiff has not presented any affidavits, depositions, answers to
interrogatories, or admissions demonstrating that Ordonez-Garcia and Cortez had the same
supervisor as Plaintiff. Moreover, the alleged similar conduct committed by Ordonez-Garcia and
Cortez is materially different. Their alleged misconduct occurred only at the Central Facility,

while the allegations against Plaintiff involved conduct at the Chicago Public Service Center.


Defs.’ 56.1 § 81; Defs.’ Ex. 22. Plaintiff and Torres were suspended pending discharge. Defs.’
56.1 § 83; Defs.’ Ex. 7A. Subsequently, Plaintiff and Torres were discharged for cause. Defs.’
56.1 { 85; Defs.’ Ex. 7C. The documents detailing Plaintiff's discharge only discussed her
sexual misconduct. Pl.’s Ex. 23; Defs.’ Exs. 4, 21, 22, 7A, 7C.
ANALYSIS
Title VH Retaliation

Under Title VII, retaliation occurs when an employer takes an adverse action against an
employee for engaging in protected conduct, such as reporting sexual harassment. Rogers v. City
of Chicago, 320 F.3d 748, 753 (7th Cir. 2003) (Rogers). Plaintiff may avoid summary judgment
on her Title VII retaliation claim through either the direct method or the indirect “burden-
shifting” method. Rogers, 320 F.3d at 753.

Circumstantial evidence consists of: “(1) suspicious timing, ambiguous statements,
behavior towards other employees and so on; [and] (2) evidence, but not necessarily rigorous
statistical evidence, that similarly situated employees were treated differently . .. .” Volovsek v.
Wisconsin Dep’t of Agric., Trade, and Consumer Prot., 344 F.3d 680, 689 (7th Cir. 2003)
(Volovsek). The evidence must create a convincing mosaic of retaliation to avoid summary
judgment. Volovsek, 344 F.3d at 690.

Plaintiff presents circumstantial evidence consisting of: (1) a memorandum authored by
Lindemann stating that Ordonez-Garcia and Cortez bared their breasts at the Central facility,

(2) Defendants’ failure to investigate the allegations in the Lindemann memorandum, (3) a

reprimand Plaintiff received concerning computer use the day after she complained of


conduct harmless. Plaintiff's issue in this regard is not that the investigation was inadequate but,
rather, that the investigation discovered acts of sexual conduct committed by Plaintiff upon
which Defendants acted.

Lastly, Plaintiff argues that the investigations demonstrate bias against Plaintiff. She
contends that the investigators knew the interviewed employees were not credible and disliked
Plaintiff. Plaintiff also contends that Defendants’ final interview with Plaintiff, when supervisors
asked Plaintiff questions about her alleged sexual conduct, was a cover-up for the biased
investigation. Plaintiff, in essence, contends that Defendants chose to believe other versions of
the events instead of Plaintiff's version. However, Plaintiff cannot avoid summary judgment
merely by attacking her employer’s determination regarding the credibility of the various persons
involved. The employer’s decision in this regard need not be correct, so long as it was honest
and genuine. See Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 398 (7th Cir.
1998). Moreover, Plaintiff has not presented any affidavits, depositions, answers to
interrogatories, or admissions to support her contention that every employee interviewed by the
investigators was biased against Plaintiff.

Based on the above, no genuine issue of material fact exists as to whether Plaintiff failed
to present a convincing mosaic of circumstantial evidence of Defendants’ retaliation.

Under the indirect method, Plaintiff must first prove a prima facie case of retaliation by
demonstrating that (1) after lodging her complaint (2) only she, and not any other similarly
situated employee who did not complain (3) was subjected to an adverse employment action
(4) even though Plaintiff was performing her job in a satisfactory manner. Stone v.

City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002) (Stone). The employer


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LETICIA M. GROSS, )
)
Plaintiff, )
)
v. ») No: 02 C 5064

)

OFFICE OF THE SECRETARY OF ) Judge John W. Darrah
STATE OF ILLINOIS, )
JESSE WHITE, THOMAS BENIGNO, )
GARY LAZZERINI, TINA PROSE, and )
JEANINE STROGER, )
)
Defendants. y

MEMORAN PINION AND ER

Plaintiff, Leticia Gross, filed suit against Defendants, the Office of the Secretary of State
of Illinois, Jesse White, Thomas Benigno, Gary Lazzerini, Tina Prose, and Jeanine Stroger.
Plaintiff alleges that Defendants: (1) retaliated against Plaintiff for filing a sexual harassment
complaint, in violation of Title VII; (2) retaliated against Plaintiff because of her political
affiliation, in violation of 42 U.S.C. § 1983; and (3) contributed to a hostile work environment,
in violation of Title VI. Presently before the Court is Defendants’ Motion for Summary
Judgment. For the following reasons, that motion is granted.

LE DARD

Summary judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);

Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). “One

of the principal purposes of the summary judgment rule is to isolate and dispose of factually


complaint in federal court until 2002. Accordingly, no genuine issue of material fact exists as to
whether these alleged adverse employment actions are time barred.
Hostile Work Environment

For Plaintiff to prevail on her hostile work environment claim, she must demonstrate: (1)
she was subjected to unwelcome sexual conduct, (2) the conduct was severe or pervasive enough
to create a hostile work environment, (3) the conduct was directed at her because of her gender,
and (4) a basis for employer liability exists. Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir.
2002) (Hall). If the harassing employee is a co-worker, as opposed to a supervisor, the employer
can only be held liable if it has notice of the harassment or was negligent in discovering the
harassment. Hall, 276 F.3d at 356. A supervisor has the power to directly affect the terms and
conditions of the victim’s employment. Hall, 276 F.3d at 355. The employer can designate a
“point person” or multiple sources to accept complaints. Hall, 276 F.3d at 356; see also Parkins
v. Civil Constructors, 163 F.3d 1027, 1036 (7th Cir. 1998). Furthermore, if the harassing
employee is a co-worker, the employer is only liable “if it negligently failed to take steps to
remedy the illegal harassment.” Longstreet v. Illinois Dep’t of Corrections, 276 F.3d 379, 381
(7th Cir. 2002).

Here, it is undisputed that Torres did not have the authority to discipline, hire, fire,
demote, or transfer any employee; therefore, Torres was not Plaintiff's supervisor. Moreover, it
is undisputed that Defendants took steps to remedy the harassment by transferring Plaintiff to
another facility to separate her from Torres.

Plaintiff argues that Defendants were negligent in discovering and remedying the

harassment. According to Plaintiff, her supervisor put off Plaintiff's efforts to report Torres’s

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Section 1983 Retaliation

Under 42 U.S.C. § 1983, retaliatory actions taken against a public employee because of
the employee’s political affiliation are actionable if: (1) the speech is a matter of public concern,
(2) the speech was a substantial or motivating factor in the retaliatory action, and (3) the action
would not have been taken in the absence of the employee’s protected speech. Spiegla v. Hull,
371 F.3d 928, 935 (7th Cir. 2004).

With respect to Plaintiffs termination, her political affiliation could not have been a
motivating factor. It is undisputed that White took office in 1999, but Plaintiff was not
terminated until 2002. A time gap of three years between the action precipitating the retaliation
and the ultimate adverse action demonstrates the political affiliation was not a substantial factor
in the termination. See Hull, 371 F.3d at 943; Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499,
511 (7th Cir. 1998). Furthermore, it is undisputed that the termination would have occurred even
in the absence of Plaintiff's political affiliation; as discussed above, Defendants’ legitimate
reason for terminating Plaintiff was not pretexual.

Plaintiff also contends she suffered a demotion, was denied a promised promotion, and
was subject to increased work scrutiny, all based upon her political affiliation, after Jesse White
was elected Secretary of State in 1999. However, Plaintiff's initial demotion occurred in 1999,
when White was elected to office. At this point, Plaintiff should have known circumstances
existed which may have violated her constitutional rights. See Mitchell v. Donchin, 286 F.3d
447, 450 (7th Cir.2002). Plaintiff then had two years to file her action. Mitchell, 286 F.3d at 450

n.1. Plaintiff did not file her Equal Employment Opportunity Commission charge or her

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Furthermore, Plaintiff's only proof that Ordonez-Garcia and Cortez engaged in similar
sexual misconduct is the Lindemann memorandum. While that memorandum may be used to
demonstrate the investigators knew about the sexual misconduct allegation contained therein, it
cannot be used to demonstrate that Ordonez-Garcia and Cortez engaged in such misconduct
which would require an investigation. The key statement in the letter provides that another
employee stated that “[y]ou know those girls — i e [sic] Susan [Ordonez-Garcia] and Sonja
[Cortez]. The [sic] bared their breasts at the other [Central] office.” Evidence presented to
defeat a summary judgment motion must be admissible in content. Juarez v. Menard, Inc., 366
F.3d 479, 484 n.4 (7th Cir. 2004). The key statement is hearsay with no exception readily
apparent.

Plaintiff next argues that Defendants’ desire to retaliate against Plaintiff is demonstrated
by (1) the timing of the reprimand concerning computer access and (2) the repeated decisions to
discipline Plaintiff for her tardiness. However, it is undisputed that none of the documents
concerning Plaintiff's termination reference the computer access report or Plaintiff's tardiness.
Plaintiff has not presented any affidavits, depositions, answers to interrogatories, or admissions
to the contrary. Because these documents played no role in Plaintiff's termination, a jury could
not infer that Defendants retaliated against Plaintiff through this evidence. See Peters v.
Renaissance Hotel Operating Co., 307 F.3d 535, 548 n.11 (7th Cir. 2002).

Plaintiff further contends the investigations were faulty because the investigators chose to
ask general questions about misconduct, instead of specific questions about Torres’s conduct.
However, it is undisputed that Torres admitted his misconduct to one of the investigators; and he

was subsequently terminated, thus making any failure to ask specific questions about Torres’s


the report was supposed to be quick and simple. Pl.’s 56.1 §§ 133-134. The report, however, did
not recommend any discipline for Plaintiff. PI.’s Ex. 10, Oct. 2, 2001 Inspector General’s
report.

Based on Plaintiffs sexual harassment complaints, two investigations were conducted:
one by Corney Morgan, an investigator with the Inspector General; and a second by Jeanine
Stroger, the Equal Employment Opportunity officer for the Secretary of State’s Office. Defs.’
56.1 § 43, 52-70, 9. As part of their investigations, Morgan and Stroger both saw a memorandum
authored by Lynn Lindemann in which another employee stated that “[y]ou know those girls ~ i ¢
[sic] Susan [Ordonez-Garcia] and Sonja [Cortez]. The [sic] bared their breasts at the other
[Central] office.” Pl.’s 56.1 J 130, 146, 157; Pl.’s Ex. 14..

Morgan met with Plaintiff, who told Morgan about Torres’s conduct. Pl.’s 56.1 4 44.
Morgan also met with Ordonez-Garcia and Cortez, who both stated that Plaintiff engaged in acts
of sexual conduct with Torres. Pl.’s 56.1 § 47; Pl.’s Ex. 15, Morgan summary at 2. Torres also
admitted to engaging in acts of sexual conduct with Plaintiff. Pl.’s Ex. 15, Morgan summary at
3. Morgan did not ask specific questions about any harassing conduct involving Torres. Pl.’s
56.1 § 147. Morgan also did not ask any questions concerning the Lindemann memorandum
because he was only focused on Plaintiff's investigation. Defs.’ Ex. 29, Morgan Dep. at 49.
Morgan concluded that Plaintiff did not suffer any sexual harassment but that Plaintiff and Torres
were both engaged in gross misconduct. Defs. 56.1 51.

Stroger met with Plaintiff concerning Torres’s misconduct. Defs.’ 56.1 9] 53-54. Stroger
also met with Ordonez-Garcia, Cortez, and Guy Tallas, who all stated that Plaintiff engaged in

acts of sexual conduct with Torres. Defs.’ 56.1 (57, 58, 64. Torres also admitted to engaging


Plaintiff was employed at the Executive Office at the Secretary of State during the
administration of George Ryan. Pl.’s 56.16. Plaintiff was actively involved with Ryan’s
political campaigns for public office. Pl.’s $6.1 911. Plaintiff also ran for State Representative
as a republican. Pl.’s 56.1 § 11.

Plaintiff performed work for investigators, such as completing investigation paperwork to
help automobile dealers obtain dealer’s licenses. Pl.’s 56.1 | 9. However, after Jesse White was
elected to replace Ryan as Secretary of State in 1999, Plaintiff was transferred from the
Executive Office to the Central Facility. Pl.’s 56.1 4] 11,35. At the Central Facility, Plaintiff
held a clerk position, which consisted of issuing driver’s licenses. Pl.’s 56.1 | 38. In late 2000
and early 2001, Plaintiff was promised by Lenny Gutierrez to become manager of a new facility.
Pl.’s 56.1 4 56.

Instead, Plaintiff was transferred to the Chicago Public Service Center, where she had
receptionist duties. Pl.’s 56.1 §¥ 62, 66. Nickolas Torres worked with Plaintiff at the Chicago
Public Service Center. Defs.’ 56.1 933. Torres did not have the authority to discipline, hire,
fire, demote, or transfer any employee. Defs.’ 56.1 935. Torres engaged in acts of sexual
conduct towards Plaintiff. Defs.’ 56.1 4 36.

After Plaintiff first complained of this sexual harassment, she was transferred to another
facility to separate Plaintiff and Torres. Def.’ 56.1 440. Plaintiff also reported her sexual
harassment claim to the Inspector General’s Office at the Secretary of State. Defs.’ 56.1 42.

The day after Plaintiff raised her complaint, she received a reprimand in a written letter
from an Inspector General’s investigation concerning computer access. P].’s Ex. 10, Oct. 2, 2001

Inspector General's report. The investigation was completed three months earlier, and compiling


unsupported claims or defenses... .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus,
although the moving party on a motion for summary judgment is responsible for demonstrating
to the court why there is no genuine issue of material fact, the non-moving party must go beyond
the face of the pleadings, affidavits, depositions, answers to interrogatories, and admissions on
file to demonstrate, through specific evidence, that a genuine issue of material fact exists and to
show that a rational jury could return a verdict in the non-moving party’s favor. Celotex, 477
U.S. at 322-27; Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst
Corp., 24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind.
Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992), When reviewing a motion for summary
judgment, a court must view all inferences to be drawn from the facts in the light most favorable
to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185
F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475
U.S. at 586. If the evidence is merely colorable or is not significantly probative or is no more
than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

BA D

The undisputed facts, for the purposes of this motion, taken from the parties’ Local Rule

56.1(a) & (b) statements of material facts (referred to herein as “Pl.’s 56.1” and “Def’s 56.1”)

and exhibits, are as follows.


conduct. However, it is undisputed that Defendants’ policy provided that Plaintiff could present
her charges to several “point persons” and that Plaintiff received notice of this policy. Plaintiff
also contends that instead of investigating the claims, Defendants fabricated grounds for
discharging Plaintiff. As discussed above, there is no evidence that the investigation conducted
by Defendants was not done properly. Accordingly, Defendants are granted summary judgment
as to Plaintiffs hostile work environment claim.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted.

ano earch. g 3 2 O05 QA

¢ ah W. DARRAH
ah States District Judge

13