On October 23, 2003, Defendant de-deputized Hicks, telling him that it was because he

Was seeing a psychiatrist. (Pl. SAF {52(h).) the internal affairs investigation of Hicks’s

alleged sexual} harassment, Hicks informed the.investigator that he was under the care of a
psychiatrist. (Def. SF | 83 (deemed admitted : apposite denial).) As a result of this

information, Defendant took Hicks’s gun and. credentials. (Pl. SAF ¢ 52(h).) Before he could be

re-deputized, Hicks had to obtain a written sta nt from a psychiatrist that there was no
medical or psychiatric reason to prevent Hicks from being in charge of his weapon; this interview
and report cost Hicks $250 to obtain. (/d.) The Topart from the psychiatrist was submitted on
November 24, 2003, and Defendant re-deputized Hicks on January 12, 2004. (Jd.)

Finally, Hicks claims that he was retaliated against when Defendant attempted to prevent
him from attending depositions of DOC’s management employees for this lawsuit. (Pl. SAF J
52(i),) According to Hicks, Defendant rescheduled an annual in-service training to take place the
week of the scheduled depositions. (/d.) Hicks,admits, however, that Defendant allowed Hicks
to reschedule his training, and Hicks was able. to attend the depositions and attend the in-service.
ef. SF 49 94, 95.)
: SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “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 deterr

ing whether there is a genuine issue of fact, the

court “must construe the facts and draw all reasonable inferences in the light most favorable to

the nonmoving party.” Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid

19



10 for almost eight months (id., [ 52(e)); (6) conducting an investigation into allegations of

sexual harassment by Hicks (id.,  52(£); (7) making Hicks submit to two drug tests (id., J

psychiatric care) (id., | 52(h)); and (9) attempting to prevent Hicks from attending depositions

(id., 4 52(i)).
Most of the incidents proffered by Hicks do not come close to qualifying as an adverse

job action. “At a minimum, the employee must be able to show a quantitative or qualitative

change i in the terms or conditions of employment,” Haywood v. Lucent Technologies, Inc., 323
F.3d 524, 532 (7th Cir. 2003). In the retaliation context, the Seventh Circuit teaches that there
are three basic categories of cases where courts have found the criteria for materially adverse
employment actions to be met:

(1) cases in which the employee’s coripensation, benefits or other financial terms of
employment are diminished, including cases where employment is terminated; (2) cases
in which a nominally lateral transfer without a change in financial terms significantly
reduces the employee’s career prospects by preventing him from using the skills in which
he is trained and experienced; and (3) {cases in which the employee is not moved to a
different job or the skill requirements of his present job altered, but the conditions in
which he works are changed in a way that subjects him to a humiliating, degrading,
unsafe, unhealthful, or otherwise significantly negative alteration in his workplace
environment—an alteration that can fairly be characterized as objectively creating a
hardship, the classic case being that of the employee whose desk is moved into a closet.”

Tart v. Ill. Power Co., 366 F.3d 461, 475 (7th Cir. 2004) (quoting Herrnreiter v. Chicago Hous.
Auth., 315 F.3d 742, 744-45 (7th Cir. 2002) (emphasis in original). Hicks has provided no
evidence that any of DOC’s actions described above led to a change in his compensation,
benefits, or other financial terms of employment. Nor has Hicks been terminated. Hicks’s

transfer from the Central Kitchen to Division 10 might possibly have qualified as an action of the

40


I, _ Equal Protection Claim (Count IV)

In Count IV, Hicks alleges that DOC has a policy and practice that ifa female is sexually

harassed, Defendant promptly investigates the situation and disciplines the male harasser,

whereas allegations of sexual harassment by a female are not promptly investigated and female

harassers are not disciplined. Thus, Hicks argues, Defendant has violated his right to equal
protection under the law, and his claim is actionable under 42 U.S.C. § 1983. Defendant argues
that it is entitled to summary judgment on Plaintiff's Equal Protection claim because Hicks
cannot point to any discriminatory policy nor can he identify a single woman who was treated
better under similar circumstances.

To prevail on a § 1983 claim based on sexual harassment, a plaintiff must demonstrate
actionable sexual harassment and that the discrimination was intentionally based on the

plaintiff's gender. See Bohen v. City of E. Chicago, Ind., 799 F.2d 1180, 1186 (7th Cir. 1986);

Zoch y. City of Chicago, No. 94 C 4788, 1997 WL 89231, at *38 (N.D, Ill. Feb. 4, 1997)

(Manning, J.). Municipalities do not have respondgat superior liability under § 1983. Garrison
“yy: Burke, 165 F.3d 565, 571 (7th Cir.1999). To show § 1983 liability on the part of the DOC,

Hicks must show that his constitutional injury’ das caused by his superiors at DOC acting (1)

pursuant to an express policy of the City; (2) pursuant to an unofficial, widespread policy or

custom “so permanent and well settled as to constitute a custom or usage with the force of law”;
“ot (3) as a “final policymaking authority.” Id. at 571-72 (citing Baxter v. Vigo County Sch.
Corp., 26 F.3d 728, 734-35 (7th Cir. 1994)) (internal quotations omitted). Hicks has put forward

sufficient evidence to establish a genuine issue of material fact as to whether DOC is liable under

§ 1983.

“36



Hicks points to the timing of the actions of which he complains as evidence of retaliatory
intent—all the events took place after he filed his lawsuit in January 2003. “There is no
bright-line rule as to the amount of evidence necessary to survive summary judgment under the
direct method, but it is clear that ‘mere temporal proximity’ is not enough to establish a genuine
issue of material fact.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th Cir. 2004)
(quoting Stone v. City of Indianapolis Pub. Utils, Div., 281 F.3d 640, 644 (7th Cir. 2002).

Indeed, Hicks does not even have the fact of suspicious timing for his one adverse employment

action, his de-deputization. Hicks was de-deputized sometime in October 2003 (id. { 52(h)),
about nine months after he filed his lawsuit (or engaged in any other protected activity, such as
filing his EEOC charge). Apart from the lengthy delay before de-deputizing Hicks, DOC offered

a perfectly reasonable explanation for de-deputizing Hicks (that he was under the care of a

psychiatrist). (Def. SF { 83.) In addition, the Cor

finds compelling DOC’s re-deputization of
Hicks in a reasonable time after he saw a psychiatrist who deemed him competent, such that one
could reasonably re-arm him with a deadly weapon. (Id.) In light of this record, nine months is
far too long to allow a reasonable factfinder to infer that Hicks’s de-deputization was causally

related to, or retaliation for, the filing of Hicks’s lawsuit. Accord Haywood, 323 F.3d 524 (one

year too remote to infer causation); Filipovic y..K & R Express Sys., Inc., 176 F.3d 390, 399 (7th
Cir. 1999) (four-month delay was “counter-evidence” of causal inference); Davidson v. Midelfort
Clinic, 133 F.3d 499, 511 (7th Cir. 1998) (no. causal inference where employee was terminated
five months after filing EEOC complaint). Similarly, if the Court assumes that the prohibition on

speaking to Aramark employees constitutes an adverse employment action, the four-month time

period between filing his lawsuit and Sergeant Page’s direction to him does not create an

45


Hicks something to the effect of, “If I were you I would just forget about what just happened

because you are opening up a can of worms. It makes no difference to the County if you are

right, they [sic] the County will only look at the female’s side.” (PI. SAF 135.) It is not clear
what, if any, action was taken by DOC or Aramark as a result of this altercation.

On January 8, 2003, Captain Kelly sént.a copy of Hicks’s December 2002 letter

complaining of Ms. Wilson’s sexual harassment.to. Aramark General Manager David Cain. (Def.
SF 55: ; id., Ex. 50.) Cain then conducted an internal investigation into Officer Hicks’s

allegations, which included interviewing Ms.. Wilson and other Aramark employees assigned to

the Central Kitchen area.''! (Def. SF 56.) As.a result of this investigation, Cain found no

evidence corroborating or supporting Hicks’s allegations of sexual harassment. (/d.) Cain then

contacted Captain Kelly and verbally informed him of his findings and conclusions.” (Def. SF {
57.)

In addition to the investigations described above, according to Hicks at least, DOC

management employees made a number of co: ents to Hicks when he allegedly made verbal

complaints of sexual harassment. (Defendant. denies that Hicks even was making verbal

‘complaints of sexual harassment, much less that,anyone was making deprecating responses to

any verbal complaints.) According to Hicks, employees laughed at him (Sergeant Page, 10

1H apbcs

‘0 Defendant states that “Officer Redmo: d tried to calm Hicks down, told Mr. Hicks to
‘cool off and told him not to ‘open a can of worms’ without thinking things over.” (Def. SF ]
36.) wee

"| Hicks denies that the findings of this investigation are correct but does not dispute that
it occurred. (PI. Resp. 56.) :

2 Hicks denies that the findings are correct, but does not dispute that this was the
conclusion. (Pl. Resp. {| 57.)

13.



Passenger Corp. v. Morgan, 536 U.S. 101 (2002), cannot constitute actionable conduct under
Title VII. Here, Defendant claims that Hicks and Ms. Wilson were involved in a testy work-
related dispute, apparently over food trays that Hicks needed from Ms. Wilson. (See Def. SF, Ex.
20, 22, 23.) Defendant argues that this evidence, combined with Hicks’s failure to provide any
evidence that the harassment was gender-related, defeats Hicks’s sexual harassment claim. For
his part, Hicks relies on two factors to establish the gender-related basis of Ms. Wilson’s actions:
the overt (indeed graphic) sexual overtones and content of the language itself, and the fact that
Ms. Wilson never made sexually abusive state stlents to any females at the workplace.

On their face, Ms. Wilson’s alleged statements constituted invitations to perform certain
sexual acts upon her. The numerous comments. were typically a version of, as Hicks describes

them, “kiss my ass” and “lick my pussy.” Taken’: ‘alone, “kiss my ass” does not establish that Ms.

Wilson’s conduct was “because of” Hicks’s sex. The phrase is certainly crass, and it is an

inappropriate one for the workplace, at least under many circumstances. Nonetheless, at the risk
of dating oneself, the phrase is no more than a crude version of the then-acclaimed “kiss my
grits” line from the 1970s television show “Alice,” a primetime program that also coincidentally
involved, like this case, a workplace/kitchen. In current usage, this phrase has no overt gender
bias, and Hicks has offered no evidence of one,, See generally Baskerville v. Culligan Int'l Co.,
50 F.3d 428, 431 (7th Cir. 1995) (rejecting sexual harassment claim relating to unwanted
solicitations of sales manager and stating, inter alia, “[h]e never said anything to her that could
not be repeated on primetime television.”).

On the other hand, repeated invitations.to someone of the opposite sex to lick one’s

genitalia or perform oral sex acts cannot be disitiissed so easily. Ms. Wilson’s actions were

23



second category, but Hicks has not provided any evidence that the transfer reduced his career
prospects, nor has he shown that his responsibilities there were “less significant than those of his
prior position.” Tart, 366 F.3d at 474. (Indeed, Hicks has not provided the Court with any
evidence whatsoever as to what Division 10 is or what responsibilities he had there.) The more-
frequent assignments to the East Dock could also perhaps be considered an action within this
second category, but Hicks again does not provide the Court with any evidence that his
réassignment reduced his job prospects or lessened his responsibility. Hicks merely points out
that he did not like the isolation and that he had to call for a relief officer before he could use the
restroom, the latter being an altogether reasonable limitation on a position that involves guarding
a correctional facility. This reassignment (even had it been a permanent one, rather than merely
an occasional daily assignment) is akin to the involuntary transfer in Herrnreiter, where the
Court.held that the plaintiff merely had a “purely subjective preference for one position over the
other.” Herrnreiter, 315 F.3d at 745. Based on the evidence presented by Hicks, the “two jobs
were equivalent other than in idiosyncratic terms.that do not justify trundling out the heavy
artillery of federal antidiscrimination law.” Id.

With the exception of his de-deputization, discussed infra, the rest of the actions
described by Hicks would ostensibly fall into the latter category—an alteration of the conditions
in which he worked. Actions in this category that.consist of the kind of harassment alleged by
Hicks must be “sufficiently severe to worsen substantially his conditions of employment as they
would be perceived by a reasonable person in the position of the employee.” Herrnreiter, 315
F.3d at 745. The actions of which Hicks complains may have been annoyances to him, but they

simply do not rise to the level that a reasonable person would consider an adverse employment

41

das mistigind <u


51 at 1-2.) Rather than rule on the individual paragraphs identified by Defendant, the Court will

draw only from the portions of the responses that are appropriate (i.e., those statements

explaining the denials), see Malec, 191 F.R.D. at 584 (“If the cited material does not clearly
create a genuine dispute over the movant’s allegedly undisputed fact, the nonmovant should
provide an explanation.”), and it will ignore any ithproper additional statements of fact. See id.
(stating that L.R. 56.1(b)(3)(B) statement is the only acceptable means of presenting additional
facts to the Court).

Perhaps most importantly, the Court directs the parties to L.R. 56.1’s provision that
deems admitted for purposes of summary judgment any statement of fact not controverted by the
statement of the opposing party. See L.R. 56.1(a), (b)(3)(B). The Court notes that both parties
have improperly denied a number of factual assertions by failing to provide adequate record
support—sometimes failing to provide any record support—for their denials. Thus, where those
factual assertions are properly supported by the record, the Court deems them admitted. See
Malec, 191 F.R.D. at 584 (“[A] general denial is ‘insufficient to rebut a movant’s factual
allegations.”); id. (failure to adhere to L.R. 56.1 requirements, including citation to specific
evidentiary materials justifying denial, is equivalent.to admission). The Court will note such
deemed admissions throughout its recitation of the relevant facts, below.

IL Facts

A The Parties and the Relationship Between DOC and Aramark

Joseph Hicks has been employed as a correctional officer by DOC since 1993. (Def. SF J
2.) He began working in the Central Kitchen of the Cook County Jail, the location of the

disputed events in this case, in 1998. (Pl. SAF 43.) The DOC chain of command above Hicks at



summary judgment on Counts I and II is denied.
ate Sex Discrimination Claim (Count III)

In Count III, Hicks alleges that DOC has discriminated against him based on his sex in
the terms and conditions of his employment. Defendant argues that Hicks has put forth no direct
evidence of gender discrimination and has failed to establish a prima facie case under the indirect
method of proof. Defendant’s latter argument is that Hicks has not suffered a materially adverse
employment action and has put forth no similarly situated individuals who were treated more
favorably than he. Because the Court finds, as described below, that Hicks has not suffered an
adverse employment action, it need not address the other contentions.”

In order for Hicks to prevail on a claim of sex discrimination, he must present evidence of
discriminatory intent, whether by direct or circumstantial evidence, or under the familiar
McDonnell Douglas burden-shifting framework. See Haugerud v. Amery Sch. Dist., 259 F.3d
678, 691. Either way, he “must prove that the ‘terms, conditions, or privileges of employment’
were affected, 42 U.S.C. § 2000e-2(a)(1); that is, [he] must show that [he] suffered a materially
adverse employment action.” Jd. (citing, inter alia, Russell v. Bd. of Trs. of Univ. of Ill., 243

F.3d 336, 341 (7th Cir. 2001).) What is considered adverse depends on both quantitative and

» The parties do not differentiate between the viability of any claims under Counts I

and IJ, in that their respective arguments are made.as to both counts together. Accordingly, the
Court analyzes the two counts together as well. .

23

purported direct evidence, laughter by his stipervisors (most of whom were male) on his reported
harassment and their attempts to dissuade him from pursuing his claims, is supposed to establish
discriminatory intent on the part of DOC based.on his gender. The Court also notes that the only
person Hicks offers as a comparator, were he to proceed under McDonnell Douglas (although the
Court finds it difficult to ascertain Hicks’s theory of liability), is Ms. Wilson, who is not an
employee of DOC and therefore not similarly situated to Hicks.

~ 34



summary judgment, the opposing party must go beyond the pleadings and “set forth specific facts
8 owing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).

it bears emphasis that this case is before the Court on a summary judgment motion. Both

sides make various arguments that are essentially predicated on assessments of who is telling the

‘truth and whose claims are too implausible to ¢ The Court cannot engage in such
assessments when deciding whether summary dismissal is warranted.
DISCUSSION

Title VII forbids an employer “to fail or refuse to hire or 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 . . . sex.” 42 U.S.C. §
2000e-2(a)(1 ). Title VIL also forbids an employer to “discriminate against any of his employees .
. . because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge “ under this subchapter.” 42 U.S.C. § 2000e-3(a).
Hicks alleges that DOC violated Title VII by subjecting him to a hostile work environment
(Claims I and fl), by discriminating against him because of his sex in failing to protect him from
“and act on his allegations of sexual harassment (Claim UD, and by retaliating against him for
filing a charge with the EEOC and for filing this lawsuit (Claim V). Hicks also alleges under 42

USC. § 1983 that DOC violated his right to equal protection under the laws by treating him

differently than it treats its female employees who complain of sexual harassment (Claim IV).

20



subject to well more than the mere occasional or infrequent comments. Compare, e.g., Pryor v.
Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976, 977-78 (7th Cir. 2000) (five comments
over half a year not a hostile work environment). As for the severity of the conduct, the Seventh
Circuit teaches that drawing the line between merely vulgar behavior and sexually harassing
behavior is not always easy. “On one side lie sexual assaults, other physical contact, whether
ainorous or hostile, for which there is no consent express or implied; uninvited sexual
solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures.
On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or
boorish workers.” Worth v. Tyer, 276 F.3d 249, 267 (7th Cir. 2001). Ms. Wilson’s alleged
comments and gestures, if true, are beyond “vulgar banter” and are well beyond mere innuendo.
Hicks alleges a number of ways that he'was inconvenienced by Ms. Wilson’s alleged
conduct. He claims that he would actively avoid Ms. Wilson in the workplace. (Pl. SAF 18.)
Hicks claims that he was intimidated by Ms. Wilson, so he would not ask her for supplies, which
would delay his work while he found someone else to help him. (/d., 25.) Hicks also claims
that he would use a more distant washroom and changed his path to avoid being in the same area

as Ms. Wilson. (/d., 9] 25, 26.) While these actions are not particularly significant disruptions

of Hicks’s workplace, combined with the frequency and severity of the alleged abuse, the Court
finds that Hicks has created a triable issue of material fact as to whether Ms. Wilson’s alleged
conduct rises to the level of a sexually hostile work environment.

B. Plaintiff Has Established a Génuine Issue of Material Fact As to Whether There
Is a Basis for Employer Liability

An employer is vicariously liable for any actionable hostile work environment created by

“26



Memorandum of Law at 9) rather than gender-related conduct, and that Ms. Wilson’s alleged
conduct was not sufficiently severe or pervasive to alter the conditions of Hicks’s employment or
to create an abusive working environment.

Whether Hicks has established that he was harassed because of his gender is a triable
question (giving Hicks the benefit of all disputed issues and inferences that flow therefrom). In
this regard, the Supreme Court teaches that workplace harassment is not “automatically
discrimination merely because the words used have.sexual content or connotations.” Oncale v.
"Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1995). “The critical issue, Title VIPs text

indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of

employment to which members of the other sex ate not exposed.” Jd. (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J’; oncurring)). In the case of male-female sexual
harassment, the Court has noted that “[c]ourts and juries have found the inference of
discrimination easy to draw . . . because the challenged conduct typically involves explicit or
implicit proposals of sexual activity; [thus] it is reasonable to assume those proposals would not
have been made to someone of the same sex.” Jd. Regardless of any kind of assumption,
however, the Supreme Court instructs that a plaintiff “must always prove that the conduct at
issue was not merely tinged with sexual connotations, but actually constituted discrimination
because of sex.” Jd. at 81 (internal quotation omitted).

The Seventh Circuit has made clear that other bases for harassment, whether acrimony
over work-related disputes, see Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir.

2000), or problems from a failed relationship, see Galloway v. General Motor Serv. Parts

Operations, 78 F.3d 1164, 1168 (7th Cir. 1996), overruled in part on other grounds by Nat’l R.R.

22


qualitative changes in the terms or conditions of. employment, but “not everything that makes an
employee unhappy is an actionable adverse action.” Jd. (internal quotation omitted). Adverse
employment actions include a “broad array of actions such as ‘hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or some other action causing a

‘significant change in benefits.” McKenzie v, Mi lwaukee County, 381 F.3d 619, 625 (7th Cir.
2004) (quoting Ellerth, 524 U.S. at 761). “To be actionable, an employment action must be
‘more disruptive than a mere inconvenience or an alteration of job responsibilities.”” /d. (quoting
Traylor v. Brown, 295 F.3d 783, 788 (7th Cir, 2002)).

Hicks makes a single conclusory statement in his summary judgment response : “[T)here
was repeated interference in Hicks’ employnient with regards to Ms. Wilson’s conduct having
greatly interfered with Hicks’ performance of his duties [which DOC did nothing to prevent]
thereby further emboldening her to act against Hicks and increasing the unreasonable interference

: ‘and fear in his performing his daily work duties.” (D.E. 42 at 16.) Hicks has failed to set out any
specific changes to his terms of employment caused by Ms. Wilson’s conduct. The mere
“inconveniences” caused by Ms. Wilson described in Hicks’s statement of additional facts, such
as Hicks’s taking alternate routes through the facility or using a more distant washroom to avoid
Ms. Wilson (PL. SAF 4 25, 26), do not rise to the level of an adverse employment action.

Hicks has failed to establish that he has_suffered a materially adverse employment action,
an element essential to his case, and summary judgment is proper on his claim of sex
discrimination. See Celotex Corp. v. Catrett, 477 USS. 317, 322 (1986). Thus, Defendant’s

motion for summary judgment is granted with respect to Count III.

35


delay such that his “kidneys would start hurting.” (/d.) Hicks offered no evidence as to whether
other officers were relieved in a more timely fashion. Defendant offered testimony evidence that
the East Dock was not generally considered to be either a punishment or non-preferred
assignment, and was indeed preferred by certain, } ficers. (Def. Resp. § 52(d); Def. SF {| 66.)

On or about April 24, 2003, Sergeant Smith instructed Hicks not to bring complaints or
other work-related needs to Aramark staff or to speak to Aramark staff. (Pl. SAF 4 52(a).)
Captain Kelly gave him the same instruction in that time frame. (/d.) All other correctional
officers were allowed to speak to Aramark employees. (id.) Thereafter, if Hicks needed

something from Aramark, he would have to spea with Sergeant Smith, which would delay his

obtaining the item for one to two hours. (Id.)
_ Hicks maintains that on five to eight océadions, Sergeant Page raised his voice at Hicks,
which had not happened prior to Hicks filing the law suit. (Pl. SAF  52(b).) Sergeant Page’s
‘general demeanor toward Hicks purportedly changed. (Id.) On one occasion, Sergeant Page
berated Hicks for wearing black gym shoes, which:were worn by other officers who were not so
treated. (Id.) 7
— From the spring of 2003 to January 25, 3004, Defendant precluded Hicks from having
access to a certain filing cabinet to which he had access for the prior three years. (Id., | 52(c).)
The filing cabinet contained supplies and forms. that Hicks needed to do his job. (/d.) Hicks

would need to find another officer (it is not.clear who) to go into the filing cabinet. (Id.) At least

one other correctional officer was allowed access to the cabinet.'* (/d.)

'6 Hicks states, “Defendants did not preclude other correctional officers who did not
complain of same from looking in.” (PI. S. F § 52(c).) Hicks’s only record evidence of this
broad statement, however, is that he saw one Officer DeBerg go into the cabinet without

AT


(d.,416.) During or near April and May 2002, on three to five occasions, Ms. Wilson, while
speaking to her co-workers but looking at Hicks, stated that Hicks could “lick her pussy” and
“kiss het ass.” ([d.,{17.) Atno time, according to Hicks, did he encourage Ms. Wilson to make
any of these statements or engage in such alleged exhibitions. (d.,4 21.) Ms. Wilson did not
make any similar statements towards any females at DOC. (Id., 22 (admitted).)

Between December 2000 and July 2002, Hicks promptly (within the same day or by the
next day) made internal complaints about Ms. Wilson's conduct, totaling 18 to 20 verbal
complaints and more than seven written complaints. (Pl. SAF § 27.) He complained to Sergeant
Page, Sergeant Janak, Captain Kelly, Superintendent Lunk, Assistant Director Lyles, Assistant
Director Barasch, and Deputy Chief Moseley. dd, 127.) None of Hicks’s written complaints
before December 2002 include mention of sexual misbehavior by Ms. Wilson (they all detail

work-related disputes). (See Def. SF, Ex. 2

; Pl. SAF § I-O.) Hicks repeatedly included

etaed

in his verbal complaints, however, the details of: the explicitly sexual nature of Ms. Wilson’s

conduct and Hick’s objections to such conduct.’ (Pl. SAF {[ 28, 29.)

In May 2002, Hicks sent a letter to the spector General’s Office complaining of sexual

harassment. (Def. SF 454.) The Inspector General is not a part of the DOC or the Internal
Affairs Division at DOC. (Jd. (deemed admitted for lack of response).) Hicks did not send this

letter to any DOC personnel or to internal affairs. (Jd. (deemed admitted for lack of response to

5 Defendant denies that Hicks made such verbal complaints. (See Def. Resp. {ff 28, 29
(denial supported by deposition testimony of DOC employees Page, Gultney, Gibbs, Carter, and
Kelly).) Defendant admits that Hicks complained.to Sergeant Page verbally once around
Christmas of 2000 and once in either July or August of 2001 regarding work-related disputes
with Ms. Wilson (Def. SF { 27), but Defendant denies that Hicks complained of any sexually
inappropriate comments or gestures by Ms.



form. (d.) After acknowledging receipt of the complaint, the person with whom the complaint
was lodged is to initiate a written, documented inquiry into the allegations and refer the
complaint to the Inspector General’s Office via the Internal Affairs Division for resolution. (/d.,
IILB.3, 4, 5.)

It is undisputed that Hicks did not file a formal written complaint of the kind described
above. Nor is it disputed that he did not file arly written complaint until 2002 that described
sexual conduct by Ms. Wilson. (See Pl. SAF. SEX. 1-O (memos describing work-related disputes,
including Ms. Wilson’s use of “kiss my ass”); Def. SF, Ex. 55 at 1, 4 (employee complaint filed
by Hicks with the Cook County Department of Human Rights dated July 15, 2002, alleging what
he labeled “sexual harassment”); Def. SF, Ex. 50 (letter from Hicks to his attorney dated Dec. 26,
2002, apparently forwarded or copied to Sergeant Page, alleging sexual harassment).) The
parties dispute whether Hicks made any verbal complaints to his superiors about Ms. Wilson’s
sexual harassment. For the purposes of this motion, however, the Court accepts Hicks’s (hotly
disputed) version of the facts—i.e., that he informed numerous supervisors of the sexual nature
of the harassment throughout the time period itoccurred. Thus, the question is whether Hicks’s

verbal notification was sufficient to give notice to DOC of the harassment.

ago, 341 F.3d 606, 613-14 (7th Cir. 2003), for

Defendant cites to Durkin v. City of le

the proposition that an employee who does avail herself of the procedures provided for reporting
sexual harassment prevents the employer from receiving sufficient notice of the harassment.

Durkin, however, does not categorically hold that notice must be given through the precise

channel outlined by the employer. The court held, “While there could be instances where this

approach [complaining to persons other than the one designated by the employer] is sufficient to

32



employee of an independent contractor typically cannot be considered an agent of the
employer.”) (citations omitted). In any event, the court declined to decide the case on this
ground, ruling that Delta had not been negligent in responding to the harassment allegations. Jd.
At least one of the cases cited by Berry considers a different question than that before this
Court today: what is a defendant’s liability for sexual harassment of a plaintiff who is a non-
employee—for example, when a franchisor-defendant is implicated in a case involving a plaintiff
who works for a franchisee, See Lockard, 162 F.3d at 1071 (plaintiff who worked for franchisee
of defendant-franchisor unable to recover from franchisor on facts of case, although liability
could be present on different facts); see also Romano y. U-Haul Int’l, 233 F.3d 655, 662, 668 (1st
Cir. 2000) (holding defendant-parent company and local company liable in setting described as a
“complex contractual relationship between two entities,” where plaintiff worked for the local
company related to parent-defendant). Here, there is no question that DOC is Hicks’s employer.
The two cases cited in Berry that are most analogous to the case at bar, Barbour and Waltman, do
not decide the question of the relationship between the harassers and the defendant, and indeed,
do not even meaningfully address the issue. See Barbour, 181 F.3d at 1348 (reversing judgment
because harassment by employees of contractor not sufficiently severe to constitute actionable
harassment); Waltman, 875 F.2d at 471 (finding triable issue of whether employer failed

adequately to remedy alleged harassment, with alleged acts of employees of independent entity

constituting part of total alleged harassment); see also id. at 483 n.3 (Jones, J., dissenting)
(noting it would be difficult to see how defendant would be liable for actions of non-employees
as contractor had reprimanded its employees after learning of their harassment). On the other

hand, courts in this District have applied the EROC standard of negligence liability to situations

29



the Sheriff has the right to require that Aramark not assign that individual to work in the DOC.”
(Def. SF 4 14.) Hicks uses this statement in an attempt to deny DOC’s statements that DOC
cannot control the staffing or discipline of Aramark employees. (Jd., J] 12, 13, 15; Def. Resp. §f

“12, 13,1 5.) Hicks also asserts that DOC (1) has “significant control” over the worksite because
“individuals can only enter and leave by being buzzed through locked doors controlled by DOC;”
(2) “has the ability to prevent Ms. Wilson from entéting this worksite;” (3) “has the ability to
prevent her from working at this worksite;” (4) “has the ability to change her hours of work (by
preventing her entry to the jail during certain hours);” (5) “to some degree has the ability to
change where specifically she works within DOC’s premises (by refusing her entry to certain
areas of the jail);” and (6) “has some ability fo cause Ms. Wilson to be disciplined.” (PL. SAF
7.) Defendant responds to these statements by specifically denying only that DOC can discipline
Aramark employees, and by objecting on the grounds that these statements are not supported by
the evidence Hicks offers. (Def. Resp. {| 7.) But the ability of DOC to control Aramark

; employees is a subject that might conceivably be within Hicks’s scope of knowledge, so the

“Court will not disregard his statements. It also‘appears undisputed that Aramark employees
agree to abide by any and all DOC rules, regulations, procedures, and General Orders regarding
Aramark’s performance under the contract between DOC and Aramark. (See Pl. SAF, Ex. G at

Bates 245 (service contract).)



the relevant times included Sergeant Henry Page, supervisor of the Central Kitchen where Hicks
worked (Def. SF { 8; Pl. SAF ¥ 3); Captain J: ames Kelly,! the Unit Commander of the Central
Kitchen (Def. SF 47); and Marcus Lyles, Assistant Director of DOC (id., 1 6). Hicks also refers
toa Sergeant Janak, Superintendent Lunk, Assistant Director Barasch, and Deputy Chief
Moseley as relevant persons at DOC regarding this case, but Hicks does not specify where these
persons fit in his chain of command, if anywhere. (Pl. SAF { 27, 32, 36, 43.)

Aramark Correctional Services is a company that provides food services to various
correctional facilities, including DOC. (Def. SFY 10.) Ms. Mereditise (a.k.a. Mertisse) Wilson
was an employee of Aramark who worked in the DOC Central Kitchen. (Jd., 917; Pl. SAF { 7.)
David Cain was a General Manager of Aramark who supervised Aramark employees in the DOC
Central Kitchen for an unspecified three years, apparently in the relevant time frame. (Def. SF {]
56, 58.)

The parties disagree about the precisé relationship between DOC and Aramark. Hicks
does not dispute DOC’s claims that Aramark is a separate and distinct entity from Cook County
(Def. SF 4 10); that Aramark employees are independent contractors (id.); that Aramark
employees are supervised, disciplined, and paid by Aramark (id., | 13); and that the Sheriff of
Cook County does not have the right to fire an Aramark employee (id., § 14). Hicks’s dispute as

to the relationship between DOC and Aramark is based on the following DOC statement of fact:

“Tn order to maintain a secure environment, the contract [between Aramark and DOC] allows the
Sheriff to conduct background checks on Aramark employees for the purpose of identifying and

avoiding potential security risks. In the event that an Aramark employee poses a security risk,

' Captain Kelly was a Lieutenant from 1997 to 2002, when he was promoted to Captain.

5

icamernnangtinegtanesoticcscom.


On or about May 2, 2003, Hicks was transferred from the Central Kitchen to Division 10

(an unexplained duty station). (Id., §/ 52(e).) Defendant explains that Hicks was transferred

made by three Aramark female employees. (Def, SF 4 76,77.) (Apparently the female Aramark

employees accused Hicks of inappropriately sexual advances towards them; Hicks denies
he did anything of this sort and suggests the Aramark employees fabricated the accusations to
support Ms. Wilson. (See Pl. Resp. ] 74.) The policy gives DOC the discretion to transfer a
correctional employee under investigation. (De . SF, Ex, 31 at 37, Sec. 14.4 LB (collective

bargaining agreement).) It is not clear who makes the decision to transfer, what factors go into

that decision, or how typical it is to transfer an’ employee under investigation. The DOC

investigator ultimately determined that there Was insufficient evidence to either prove or disprove
the allegations made by the Aramark employees and closed the investigation. (Def. SF 479.)
Hicks claims that the investigation by the Internal Affairs Department into the allegations of
: sexual harassment by him was itself a form of retaliation. (Pl. SAF  52(f).)
; In October and November 2003, boc directed Hicks to take two drug tests, both of

which came back negative. (Pl. SAF 4 52(8)) Hicks claims that these tests were not random, as

DOC policy requires. (Def. SF § 90.) Hicks offers no evidence to support his contention that the
tests were not random other than his own opinion and speculation. (Def SF 93.) Because the
selection of persons for drug testing is outside of Hicks’s personal knowledge and because Hicks
offers no evidence beyond his own speculation, the Court will not accept Hicks’s

characterization of the drug tests as anything other than random.

supervision. (Pl. SAF, Ex. X at 168-72.)
18.



about December 25, 2000, in front of witnesses, Ms. Wilson told Hicks to “lick and suck her
pussy” as she rubbed her vaginal area. (/d., J 9.) On approximately two occasions between
December 25, 2000, and January 30, 2001, Ms, W ilson told Hicks to do certain sexual things to
her, including telling him to “lick and suck her pussy” and also told him to “kiss her ass,” and she
rubbed her vaginal area and patted her buttocks.“in a seductive and sexually inappropriate
manner.” (/d., 10.) Between February and December 2001, approximately every two weeks,
Ms. Wilson would say things to Hicks, both directly and indirectly, such as “kiss my pussy,”
“kiss my ass,” and “fuck” while she was rubbing her vaginal area and buttocks in his presence.
(id, 11.) At some point in 2001, while Hicks, was in the break room, Ms. Wilson stated to him,
without any provocation, “kiss my black ass” while she was patting her buttocks. (/d., { 12.)
While Hicks was walking away from Ms. Wilson during that incident, Ms. Wilson stated, “He
can lick my pussy.” (/d.) On or about June 25, 2001, Ms. Wilson again told Hicks to “kiss and
lick her ass,” and told Hicks, “Don’t touch my body again, don’t put your fucking hands on me
again.” (Id., 13.) (Hicks denies having tied fo touch her.) On or about September 23, 2001,
Ms. Wilson again told Hicks to “kiss her black ass” or any “other place Hicks could think about.”
(Id., 14.) She also stated, in the presence of Sergeant Janak and Officer Redmond, that she was
going to “fuck Hicks real good.” (/d.)

Between January and May 2002, approximately every three weeks, Ms. Wilson would say

things to Hicks, directly and indirectly, such as “lick this good pussy” and “good pussy, good

pussy,” while she turned her buttocks toward Hicks and rubbed herself. (/d., 15.) During or
near February 2002, Ms. Wilson walked down.a,hallway at DOC, telling Hicks to “kiss her ass”

while she rubbed her intimate body parts “in a seductive and sexually inappropriate manner.”



targeted to Hicks alone,'* and they were accompanied by Ms. Wilson rubbing herself in what

Hicks claims was a “seductive and sexually inappropriate manner.” (See Pl. SAF 10.) On the

basis of this (hotly disputed) record, whether Ms ‘Hicks directed this language and conduct
toward Hicks because of his sex rather than because of a work-related dispute is a sufficiently
fact- and context-specific question to be decided by a jury.”

Defendant next argues that Ms. Wilson’s alleged conduct was not severe or pervasive

enough to constitute a hostile work environment. To prove that a hostile work environment

xisted, Hicks must put forth sufficient evidence that he “was subjected to conduct so severe or

pervasive as to alter the conditions of employment and create an abusive working environment.”

'8 Defendant admits that Ms. Wilson did not direct any sexually abusive comments or
conduct comments toward other women at DOC. (See Pl. SAF § 22; Def. Resp. { 22.) The
Court notes that had Defendant not admitted this fact (see Def. Resp. 22), the Court would have
been inclined to find that Hicks’s record evid ‘was insufficient to support his factual
assertion. Hicks may be able to testify that neither. he nor Mr. Morris (a former DOC employee)
ever heard Ms. Wilson make similar comments to females, but that does not necessarily establish
that she never made those comments. In light of the admission by Defendant, however, the Court
need not decide that evidentiary question.

° In this regard, it is useful to consider a situation where a male worker repeatedly
suggests that a female coworker (and only that coworker) should perform oral sex on him. The
male worker (in addition to denying that he made the statements) suggests that any statements, if
made, simply reflect ongoing animus related t orkplace disputes between the parties and are
not any evidence of sexual harassment. A fac! t might credit the notion that the male worker
was uttering such statements because of the other workplace disputes, and that the statements are
not any “discrimination because of sex,” Onc Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1995), but the jury would need to make that assessment. See generally Berry v. Delta

- Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001) (collecting cases and teaching that

“[iJnappropriate conduct that is inflicted regar of sex is outside the statute’s ambit,” but

harassment directed to another because of their'séx is prohibited) (internal punctuation and
citations omitted). An (extraordinarily crude) male might make such inappropriate comments
simply.as an alternative to expressing displeasure related to other workplace disputes in some

_ other fashion, but whether that claim would b , credited would turn on the relative credibilities of
the witnesses involved and an assessment of body language, tone of voice, the look on the
speaker’s face, etc.

24



Oe ume

‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

nome of signe de Mark Filip Sing Judge i Oe
CASE NUMBER 03 C 327 DATE 12/17/2004
CASE JOSEPH N. HICKS vs. MICHAEL SHEAHAN, et al
TITLE oe
{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:
ql) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due____.
(3) . oO Answer brief to motion due___. Reply to answer briefdue__
4) oO Ruling/Hearing on___s set ffor____ at _.
Qa Status hearing[held/continued to] [set for/re-set for] on__setfor___—_at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on ._setfor_ at
(©) oO Trial{set for/re-set for] on__—_aat
(8) Qo {Bench/Jury trial] [Hearing] held/continued to, at
(9) Gl This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) Local Rule 41.1 CFRCP41(a)(1) O FRCP41(a)(2).

ao) [Other docket entry) . ENTER MEMORANDUM OPINION AND ORDER: Defendant’s motion
for summary judgment is granted with respect.to Counts III and V, and is denied with respect to Counts
I, Il, and IV. STATUS HEARING SET FOR 1/6/05 at 9:30a.m.

ay (For further detail see order attached to the original minute order.]

No iibtices required, advised in open court.

No notices required. v4
‘4 umber of nati

Noiizés mailed by judge’s staff. DEC 20 2004

Notified counsel by telephone,

dare dockgied

wv | Docketing to mail notices.
Mail AO 450 form.

aaitaiagn deudingLepihy-nitia

Copy to judge/magistrate judge

date mailed notice

courtroom: eek
TBK deputy’s °
initials

Date/timesreceived'in
central Clerk’s Office

mailing deputy initials



In addition, even if Hicks were to make out a prima facie claim of retaliation based on his
de-deputization, DOC has offered a legitimate, non-discriminatory explanation (that DOC
learned he was undergoing psychiatric care, and. therefore wanted to determine whether arming
him with a deadly weapon presented any unreasonable risks to prisoners, coworkers, or himself),
and Hicks has offered no evidence (or argument) that the explanation is a pretext for
discrimination. Unrebutted evidence of a “noninvidious reason for the adverse action” entitles a
defendant to summary judgment. Stone, 281 F.3d at 644; accord Wyninger, 361 F.3d at 981.
Similarly, it is obvious that telling a DOC employee who is involved in ongoing and escalating
conflicts with Aramark employees (which prompted expensive and time-consuming litigation for
the DOC) to stop interacting with those Aramark employees is a commonsense conflict-reducing
mechanism that likely should have been instituted far sooner. No reasonable jury would find this
evidence of unlawful intent; indeed, a jury would likely wish that the step had been instituted
years earlier. For all of these reasons, Defendant’s motion for summary judgment is granted as to

Count V.

we AT

Niiakiitae ey.


her behavior. (PI. SAF 4/30.) Defendant denies this statement by pointing out that it did not
have the power to discipline Ms. Wilson, see supra, and by pointing to its prompt investigation
of the complaints detailed in Hicks’s December 2002 letter, see infra.’ (Def. Resp. { 30.)
Defendant does not deny that the only investigation into sexual harassment claims by Hicks was
the one initiated after the December 2002 letter, da.)

In response to a complaint by Hicks concerning Ms. Wilson around December 25, 2000,

Sergeant Page initiated an investigation.’ (Def. SF { 28.) Hicks informed Page that he and Ms.

Wilson had had a disagreement in the kitchen infront of inmates over food trays and that she

: used profanity towards him. (Def. SF 28.) Defendant states that Hicks did not complain about
any type of sexual behavior or comments in ihis complaint. (Def. SF { 28.) Plaintiff states that
he did so complain. (Pl. Resp. { 28.) Following the complaint, Page and Superintendent Lunk
met with Aramark Manager Cain to discuss Hicks’s concerns. (Def. SF | 30 (deemed admitted

for lack of evidentiary support for denial).) On January 29, 2001, Page, Hicks, and Cain met

. 6 Defendant also challenges this state of fact as being outside Hicks’s personal
knowledge. (PI. Resp. 30.) The Court agrees that Hicks has given no reason to believe that he
would be privy to all discipline actions concerning Ms. Wilson. But to the extent that any
investigation was made concerning Hicks’s complaints about Ms. Wilson, the Court finds it
reasonable, at least for summary judgment purposes, to believe that Hicks would be aware of it.
Or, put differently, the Court will interpret this gap in the summary judgment record as presented
in Plaintiff's favor. si

__ 7 Hicks states that Page should not have conducted the investigation because he was
having a sexual relationship with Ms. Wilson. (Pl. SAF 31.) The Court finds absolutely no
support in the record for this accusation. Hic wn speculative testimony is not evidence.
The testimony by Sheila Ligon, a former DO loyee, that she saw Page in Ms. Wilson’s car

one time (see Pl. SAF, Ex. Y at 52:7-18) does. not.come close to establishing a sexual
relationship. a

dt



this statement).) The Inspector General informed Hicks that it did not have jurisdiction over the
matter and that Aramark would have to investigate the complaint. (Def. SF 54.)

On or about December 26, 2002, Capiain Kelly received a copy of a letter Hicks sent to
Hicks’s attorney complaining about sexual harasgitent by Ms. Wilson. (Def. SF 55; id., Ex.

50.)

Cc. Response by DOC

DOC maintains a sexual harassment policy. According to the policy, unwelcome acts of

a sexual nature constitute sexual harassment when, submission is made a term or condition of

employment, when submission is used as a basis.of any employment decision affecting the

individual’s employment, or when such conduct has the purpose or effect of interfering with an
individual’s performance or creating an intimidating, hostile, or offensive work environment.

(Def. SF] 41.) The policy prohibits a Sheriff's employee from sexually harassing another

Sheriff employee or non-Sheriff employee working on the premises. (Id., 42 (deemed admitted
for inapposite denial).) If an employee of DOC feels he is being sexually harassed, he is
supposed to complain to his immediate supervisor, and if he does not get immediate relief he is
to follow his chain of command. (Def. SF] 43 (deemed admitted for inapposite and unsupported

denial).) Specifically, the policy requires the vi to make a claim by completing, dating, and

signing a Sexual Harassment Complaint Form and submitting it to a supervisor, who will
acknowledge receipt by signing and dating the bottom of the form. (Def. SF [43 (deemed

admitted for inapposite and unsupported denial).)

According to Hicks, DOC failed to protec! Hicks from Ms. Wilson’s unwelcome sexual

comments and actions and failed to take any or'a propriate action to discipline Ms. Wilson for

10



REMI oy
‘ '

But Hicks admits that he was always able to get his work done (Def. SF 73), and he has
presented no evidence that he has been disciplined in any manner for an inability to do his work.

Ultimately, the Court finds that the inconvenience he suffered from having to wait to obtain

items from his DOC supervisor “may have be pleasant, but it was not severe enough to

constitute an adverse employment action.” Haywood, 323 F.3d at 532.

Hicks’s strongest argument that an action by DOC after he filed his lawsuit may
constitute an adverse employment action is Hicks’s de-deputization. As a result of DOC’s
decision to de-deputize Hicks, he temporarily lost his right to carry a loaded weapon and his
credentials (see Pl. SAF { 52(h)), surely a significant alteration in his condition of employment
and one that could reduce his future job prospects. But finding this one adverse employment
action is only the beginning. Hicks still must prove discriminatory animus under either the direct
or indirect method in order to survive summary judgment.

” Hicks purports to present “extensive direct evidence” of DOC’s retaliation. (D.E. 42 at
19) He points to “[t]he timing of the DOC’s suddenly particularly hostile actions against Hicks,
which started the month he filed his lawsuit Gi anuary 2003).” (Id.) Hicks also asserts that “the
retaliatory intent of the DOC’s managerial employees for why they suddenly changed their
treatment of Hicks is easily discerned from their earlier repeated laughter when Hicks would
complain to them, as well as also their repeated attempts to dissuade and prevent Hicks from
pursuing his claims.” (Jd.) Although Hicks notes in his response that he may alternatively prove
his case by using the McDonnell Douglas burden-shifting framework, he does not attempt to put
forth evidence of the elements necessary to make out a case using that method. (See id. at 18-

19.) Thus, the Court will address the direct method.

3



complaining of sexual harassment. (Def. SF, Ex. 50.) Such action would require no control over
Ms. Wilson by DOC and could perhaps be considered reasonable and adequate under the
circumstances (although the Court does not reach that issue). On this record, particularly given
the demonstration that DOC had the ability to instigate an investigation by Aramark, the Court
finds that Ms. Wilson’s status as a non-employee does not preclude liability by DOC if it is
otherwise liable under Seventh Circuit negligence standards.

Defendant next argues that even if it could be liable for the conduct of a non-employee, it
is still entitled to summary judgment because Defendant was not negligent in discovering or
remedying the harassment. In particular, Defendant argues that Hicks did not complain of sexual
harassment and did not follow proper procedur€s concerning reporting alleged sexual
harassment. Hicks responds that DOC has not shown it promptly corrected any sexually
harassing behavior. Because DOC responded promptly after receiving Hicks’s December 2002
letter, Hicks’s argument defeats summary judgment only if he is correct that his earlier verbal
complaints sufficiently put the Defendant on notice of the alleged sexual harassment. “Since an
employer is not omniscient, it must have notice or knowledge of the harassment before it can be
held liable.” Durkin v. City of Chicago, 341 F.3d 606, 612 (7th Cir. 2003.)

DOC has a system for the making and forwarding of complaints about sexual harassment.
(See Def. SF, Ex. 29.) The reporting procedure under the policy details the following steps: First,
the victim will inform the harasser that such conduct is unwelcome. (/d., III.B.1) Second, the
employee will fill out a Sexual Harassment Complaint Form and report the incident to his
supervisor (or next in command, if the harasser is the supervisor). (/d., III.B.2) The employee is

also given the option of reporting the harassment directly to the department head on the same

31


CONCLUSION
For the reasons stated above, Defendant's motion for summary judgment is granted with
respect to Counts II] and V, and is denied with respect to Counts I, Il, and IV.

So ordered.

Ube

Mark Filip le
United States DyStrict Judge

Northern District of Illinois

Date: /?- 17-6 va

48



involving harassment by a non-employee. See Zupan v. State, No. 95 C 1302, 1999 WL 281344,
at.*4 (N.D. Ill. Mar. 31, 1999) (Williams, J.) (collecting cases and holding on the facts of the
case that state and county circuit court were not liable for harassment of court employee by
sheriff's deputy); Jarman v. City of Northlake, 950 F, Supp. 1375, 1377-79 (N.D. Ill. 1997)
(Aspen, J.) (declining to dismiss hostile work environment claim by city employee based on
allegations against elected official over whom “it seem[ed] clear” the city had “substantial
control”).

While the Court notes and is mindful of the concern articulated in Berry, this case is
distinguishable and is not predicated on a theory of vicarious liability as to the Defendant. Here,
Hicks is suing DOC on a theory of liability based.on its own negligence in not addressing the
sexual harassment by Ms. Wilson. Even assuming that DOC is correct that it did not have the
authority to control an Aramark employee, Defendant has offered no reason that it should not
have at least tried to address the problem when Hicks was (allegedly) repeatedly complaining of
the harassment.?! The liability for co-worker sexual harassment is, after all, one of negligence.
See, e.g., Longstreet v. Ill. Dep’t of Corr., 216 F.3d 379, 381 (7th Cir. 2002) (employer liable for
harassment by co-worker “if it negligently failed to take steps to remedy the illegal harassment”)
(citing Smith v. Sheahan, 189 F.3d 529 (7th Cir. 1999)); Berry, 260 F.3d at 813 (inquiry is
whether employer’s corrective response to sexual harassment is “reasonable and adequate under
the circumstances”). DOC could have notified Aramark of Hicks’s allegations of Ms. Wilson’s

actions and asked it to investigate, as it did after DOC received Hicks’s December 2002 letter

?| Whether Hicks’s alleged verbal complaints were sufficient to give DOC notice of the
alleged harassment is discussed, infra.

30



B. Alleged Harassment and Hicks’s Complaints to DOC’

Hicks offers testimony that from December 23, 2000, to sometime in 2002, Ms. Wilson
repeatedly directed sexual language and offensive conduct toward him in the workplace. (Pl.
SAF ff 8-17.) Defendant offers testimony from Ms, Wilson denying each allegation of such
conduct. (Def. SF q 60; Def. Resp. ff] 8-17.) It is, of course, not the Court’s place to weigh
conflicting evidence? and resolve factual disputes. But Defendant argues that these disputes are
not material because even if Hicks’s version of facts is correct, Defendant is entitled to summary
judgment. Thus, the Court will recite all properly-supported facts* as the parties have (often

graphically) presented them.

On or about December 23, 2000, in front.of unnamed witnesses, Ms. Wilson told Hicks to
“lick and kiss her pussy” while she rubbed her vaginal area. (Pl. SAF 8.) She turned around,

lifted the smock she was wearing, and shouted to Hicks to “kiss her black ass.” (d.) On or

2 ‘The briefs and factual record are laden with a number of contested factual debates and
side debates. For example, Plaintiff asserts that he is a happily married father of four who is, in
fact, a reverend in his church. (Pl. SAF 4 1.) Wilson appears to contend that Plaintiff has
made unwanted sexual advances against her (Def. SF J 26), and Defendant also includes
references to the testimony of other female w: from Aramark who contend that Plaintiff has
made sexual and/or romantic advances toward: m (id., { 74). Plaintiff disputes these claims,
and suggests that the Aramark accusers were put up to falsely make these claims to support Ms.
Wilson. (Pl. Resp. | 74.) The Court does not delve into these debates, as they are not central to
the resolution of the Motion.

. 3 For example, Defendant points to testimony by other persons who worked in the DOC
: Central Kitchen that they had never heard on make sexual comments in the workplace.
(See, e.g., Def. SF J 47, 49, 53 (deemed admitted for lack of support for denial in response).)

rg

‘ Defendant repeatedly objects to evidence offered from Hicks’s “self-serving affidavit.”
But facts within Hicks’s personal knowledge, including allegations by Hicks of what Ms. Wilson
said to him, are properly supported by affidavit testimony. See Fed. R. Civ. P. 56(e); accord
Payne vy. Pauley, 337 F.3d 767, 773 (7th Cir. 2003).



L Sexual Harassment Claims (Counts I and I1)””

In order for Hicks to prevail on a claim of sexual harassment based on hostile work
environment, he must establish that: “(1) [he] was subjected to unwelcome sexual harassment;
(2) the harassment was based on [his] sex; (3) the sexual harassment unreasonably interfered
with [his] work performance by creating an intimidating, hostile or offensive work environment
that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for
employer liability.” McPherson v. City of Waukegan 379 F.3d 430, 437-38 (7th Cir. 2004).

A Plaintiff Has Created a Genuine Issue of Fact As to Whether He Was Subject to a
Sexually Hostile Work Environment

Defendant argues that Plaintiff has not established that the alleged conduct rose to the
level of a sexually hostile work environment. Defendant argues that Ms. Wilson’s alleged

conduct constituted “clear expressions of acririitiy over work related disputes” (D.E. 37,

'7 Defendant initially argues that Plaintiffs charges of sexual harassment (Counts I and

If) should be dismissed because they are outside the scope of his EEOC charge. This argument
apparently stems from two concerns: (1) that the charges in Hicks’s complaint purportedly cannot
be inferred from his first EEOC charge of discrimination (Def. SF, Ex. 11); and (2) that Hicks’s
second, more detailed EEOC charge (id., Ex. 14), which Defendants argue is inconsistent with
his, first charge, cannot be used to expand the scope of his first charge.

The Court can quickly dispose of this argument in Plaintiff's favor. Hicks clearly
detailed his claims of sexual harassment based ona hostile work environment and sex
discrimination in his second EEOC charge. Defendant has failed to provide this Court with a
single citation to legal authority to support its. contention that Hicks may not rely on the second
EEOC charge as the basis for his federal complaint, Because the scope of the EEOC charge in

_ Felation to the federal complaint is not a jurisdictional question that the Court must take up on its
own accord, see Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985) (“{T]he
requirement that the scope of the EEOC charge limit the scope of the subsequent complaint is in

_ the nature of a condition precedent with which litigants must comply rather than constituting a
component of subject matter jurisdiction.”), the Court will not award summary judgment to
Defendant on a ground so presented. Thus, the Court finds that the claims in Hicks’s second
amended complaint are reasonably related to.and grow out of the allegations in his second EEOC
charge. See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001).

21



that if such sexually abusive and offensive conduct... committed by Ms. Wilson against Hicks

had been instead committed by Hicks (i.¢. 2. male) against a female that Cook County would

‘have quickly acted and terminated [Hicks’s] employment.” (Pl. SAF 4 44.) The Court deems

this fact admitted by Defendant because of a lack of support for its denial.?> Hicks has also

claimed (and the Court must accept his versio: vents) that he “suffered many instances of
sexual harassment and often complained of them through official channels, but that nothing was
done.” Bohen, 799 F.2d at 1187. This evidenc is sufficient to create a genuine issue of material

fact as to whether DOC had an informal yet established custom or policy of discrimination

against male victims of sexual harassment. 1187 (“[A] plaintiff can make an ultimate

showing of sex discrimination . . . by showin, the conscious failure of the employer to

oes

protect the plaintiff from the abusive conditions. created by fellow employees amounted to

intentional discrimination.”). Thus, Defendant’s motion for summary judgment on Count IV is

denied.

IV. Retaliation Claim (Count V)
In Count V, Hicks alleges that DOC retaliated against Hicks for having filed this lawsuit.

Defendant argues that it is entitled to summary judgment on Hicks’s retaliation claim because

Hicks has not sustained any adverse employment action and because he has failed to prove

retaliatory intent.

23 Defendant cited to DOC’s official sexual harassment policy and to Defendant’s
pleadings. A general denial based on these documents is insufficient record support to deny the
specific allegation by Hicks that Barasch made these statements. Defendant also makes a general
objection that this statement is “riddled with. issible hearsay” (Def. Resp. {| 44), but
declines to elaborate. In the absence of a sp argument, such as that Barasch was making a
statement concerning a matter outside the scope of his employment relationship with DOC, see
Fed. R. Evid. 801(d)(2)(D), the Court will n stain Defendant’s objection.



A plaintiff may establish a prima facie. as eof retaliation through either the direct or
indirect method of proof. “Under the direct method, the plaintiff must present direct evidence of
(1) a statutorily protected activity; (2) an adver action taken by the employer; and (3) a causal

connection between the two.” Sitar v. Ind. ] of Transp., 344 F.3d 720, 728 (7th Cir. 2003).

“Under the indirect method, the plaintiff must,show that (1) [he] engaged in a statutorily
protected activity; (2) [he] performed [his] jo! ording to [his] employer’s legitimate

expectations; (3) despite [his] satisfactory job performance, [he] suffered an adverse action from

the employer; and (4) [he] was treated less fas rably than similarly situated employees who did

not engage in statutorily protected activity.” th methods require a showing that the

plaintiff suffered an adverse employment action.® Williams v. Waste Mgt. of Ill., 361 F.3d 1021,

1031 (7th Cir. 2004).
Hicks alleges the following actions by, 2 s Tetaliation for filing his federal lawsuit:

(1) Sergeant Smith directing Hicks not to | ‘Aramark employees about work-related

concerns, delaying Hicks’s ability to obt for one to two hours (PI. SAF § 52(a)); (2)

sebieiece 8

Sergeant Page raising his voice at Hicks, such as the time Hicks was talked to about wearing

inappropriate footwear (id., § 52(b)); (3) precludi

See

; Hicks from having access to a filing cabinet
which contained supplies and forms that Hi needed (id., | 52(c)); (4) repeatedly assigning

Hicks to the East Dock (id., | 52(d)); (5) transferring Hicks from the Central Kitchen to Division

notes that although retaliation claims need not
laintiff’s employment, see Herrnreiter v.

26 Like the court in Williams, this Co:
__ always involve an adverse action regarding #
Chicago Housing Auth., 315 F.3d 742, 745 | Cir. 2002), Hicks “has alleged only adverse
action related to his employment in suppo etaliation claim, [so the Court will] evaluate
his evidence in terms of whether it amount to.an adverse employment action.” Williams, 361
F.3d at 1031 n.4 (emphasis in original).



a supervisor with authority over the victim employee if it knew or should have known about the
conduct and failed to stop it. Burlington Indus. v. Ellerth, 524 US. 742, 765 (1998). An
employer may be held liable for co-worker harassment only if the employer was negligent in
either discovering or remedying the harassment, Williams v. Waste Mgt. of Iil., 361 F.3d 1021,
1029 (7th Cir. 2004). See also Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-74 (10th Cir.
1998) (collecting cases and stating, “We agree with our sister circuits that an employer may be
found liable for the harassing conduct of its customers.” [. . .] “Moreover, we agree with those
courts that have applied a negligence theory of ‘liability (with respect] to the harassing acts of
customers.”); accord Menchaca v, Rose Records, Inc., No. 94 C 1376, 1995 WL 151847, at *2-4
(N.D. Ill. Apr. 3, 1995) (Plunkett, J.) (denying simmary judgment to defendant-employer of
employee allegedly harassed by customer). Ms.. Wilson was not Hicks’s supervisor, so the latter
negligence standard applies.

Defendant argues that summary judgment is proper on Counts | and II because it cannot
be held liable for any harassment by Ms. Wilson. First, Defendant argues that it cannot be liable
for the actions of a person who is an employee of Aramark and not the Department of
Corrections. Second, Defendant argues that even if it could be liable for the conduct of a non-
employee, it is still entitled to summary judgment because Defendant was not negligent in

discovering or remedying the harassment.

Defendant reties on Berry v. Delta Airlines, Inc., 260 F.3d 803 (7th Cir. 2001), to support
its argument that DOC should not be liable for Ms. Wilson’s actions, as she is an employee of
Aramark. In Berry, a Delta Airlines employe¢ was sexually harassed by an employee of

Argenbright Security, an independent contractor for Delta. The court began its liability analysis

27


Memorandum of Law supporting its Motion. (See D.E. 37, Mem. of Law at 1), Instead,
Defendant merely incorporates and directs the Court to its lengthy statement of facts. This, too,
is improper. See Malec, 191 F.R.D. at 585 (“[L.R.] 56.1 statements do not abrogate a party’s
obligation to recite its version of the facts in its supporting memorandum; it is inappropriate in
one’s memo to simply refer the Court to the 56.1 statement.”). Generally, the lack of such
statement is not merely an inconvenience for the Court (in that Defendant has not laid out a
concise, chronological statement of the pertinent facts); it also disadvantages the Plaintiff (in that
Defendant is effectively given more space for its legal arguments). Since, however, Hicks has
not objected to the Motion on this ground—and the Court granted Hicks’s motion to file a short
surreply (see D.E, 53)—the Court finds that this violation of LR. 56.1 does not justify denial of
the Motion in its entirety.

More substantively, the Court notes that Defendant improperly filed a Reply to Plaintiff's

Response to Statement of Uncontested Facts. -E. 51.) While Defendant is permitted to
file a response to Hicks’s statement of additional facts, see L.R. 56.1(a), nowhere does the rule
state that a movant may reply to the responses of the non-movant. Thus, while the Court will
consider the latter half of Defendant’s Reply, which responds to Hicks’s additional statements of
fact, the Court will not consider the unnecessary and improper “replies” to Plaintiff's responses.

See Schulz v. Varian Medical Systems, Inc., 315 F. Supp. 2d 923, 925 n.1 (N.D. Ill. 2004);

accord Kozlowski v. Fry, 238 F. Supp. 2d 996, 1600 n.2 (N.D. Ill. 2002) (Keys, M.J.) (citing

White v. Sundstrand Corp., No. 98 C 50070, 3000: WL 713739, at *2 (N.D. Ill. May 23, 2000)
(Reinhard, J.), aff'd, 256 F.3d 580 (7th Cir. 2001)). The Court does note, however, Defendant’s

tequest in its reply for certain portions of Hicks’s responses to be stricken. (See generally D.E.



inference of retaliatory intent. Given that there is nothing facially dubious about ordering Hicks
not to talk to Aramark employees who may be involved in a lawsuit he has filed, Hicks has failed
to created a triable issue as to a causal link between his protected activity and any adverse
employment action.” ,

Although Hicks does not argue that summary judgment is improper because he has made
out a prima facie case of retaliation based on the indirect method of proof, and Hicks has thus
arguably waived any such argument, it is worth noting that Hicks would not prevail under that
theory based on the evidence in the record. Hicks cannot make out a prima facie case for either
his de-deputization or DOC’s prohibition on Hicks speaking to Aramark employees because
Hicks has not pointed to any similarly situated ‘employees who did not complain who were not
subjected to these adverse employment actions (assuming they are such). See Rogers, 320 F.3d
at 755. Hicks points to no similarly situated petson regarding the de-deputization. To the extent
that Hicks points to any comparators regarding the prohibition on speaking, he simply alleges
that “[a][l other correctional officers were allowed to speak with Aramark staff.” (Pl. SAF 7
52(a).) This kind of blanket assertion does not help Hicks because, “even if it were true, [h]e
does not cite to any evidence demonstrating that any of the other [correctional officers within the
Central Kitchen] were directly comparable to [him] in all material respects.” Rogers, 320 F.3d at
755 (holding that lack of comparators other than a broad assertion that no other officer was

treated the same defeated a prima facie case of retaliation).

28 The only other “evidence” of retaliatory intent offered by Hicks is the alleged laughter
and dissuasion by DOC employees when he reported Ms. Wilson’s actions. Hicks offers no
reason other than his “pure speculation” that these actions (assuming they are true) are related in
any way to the later events of which he complains. Haywood, 323 F.3d at 532.

46


Under the direct method of proof, a plaintiff may present either “either direct evidence or
circumstantial evidence that would entitle a jury to conclude that the employer acted with

forbidden animus.” Rogers v. City of Chicago, 320.F.3d 748, 754 (7th Cir. 2003) (emphasis in

original). Direct evidence is “an outright adm sion by the decisionmaker that the challenged

action was undertaken [for retaliatory reasons],”. Davis v. Con- Way Transp. Cent. Express, Inc.,
368 F.3d 776, 783 (7th Cir. 2004); id. at 786 (direct evidence is defined the same for
discrimination and retaliation claims). Direct evidence such as the “I-am-not-promoting-you-
because-you-are-a-woman type is understandably rare.” Volovsek v. Wisc. Dep’t of Agric.,
Trade, and Consumer Prot., 344 F.3d 680, 689 (Gin Cir. 2003). Hicks offers no direct evidence
of retaliation—that is, he has “no evidence that a decisionmaker essentially admitted that he [or

she] took the action against [Hicks] because [he] complained of discrimination.” Rogers, 320

F.3d 748. Thus, the Court must decide whether the circumstantial evidence Hicks offers would

allow a jury to infer intentional retaliation. ‘olovsek, 344 F.3d 680; Davis, 368 F.3d at 786-
87 (describing the “mosaic” of circumstantial evidence needed to prove intentional retaliation
under the direct method of proof).

The Seventh Circuit teaches that circumstantial evidence of retaliatory intent usually
comes in three varieties: “(1) suspicious timing, ambiguous statements, behavior towards other
employees and so on; (2) evidence, but not necessarily rigorous statistical evidence, that similarly
situated employees were treated differently;” and (3) evidence that the employer’s reason it gave
for its difference in treatment constituting the adverse employment action is a pretext for

discrimination. Volovsek, 344 F.3d at 689-90. This last category has been described as bearing

an “eerie similarity to the evidence required under,the indirect method.” Jd. at 690.

44



“fo 15 times; Captain Kelly, approximately 3 Sergeant Janak, 1 time; and Superintendent

Lunk, 1 time). (Pl. SAF 432.) On more than.one.occasion, Sergeant Page directed Hicks to

“keep it in the kitchen” (id., 33) and advised Hicks to “leave it to him, that he’d speak with her

[presumably Ms. Wilson], and that Hicks should not repeat his complaints to anyone else” (id., J
34). On or about November 2, 2001, Deputy Chief Moseley stated to Hicks that he was upset

that Hicks “co’s everybody” and told Hicks someth ing to the effect of “he’s ‘messed up now so

>

just let the chips fall where they may.”” (Id., 35.) Moseley also directed Hicks not to contact

him anymore, advised Hicks that Moseley wou contact him, and led Hicks to believe the

February 2002, Sergeant Page told Hicks

regarding his complaints to “stop this foolishness;” “to just let everything go away and

‘everything would be all right;” “to leave it alone.,.. . because it wasn’t going anywhere;” and “to

forget about it.” (Id., JJ 37, 38.) In that same time frame, Captain Kelly told Hicks to “be a team
player” and that “Hicks was a man and [should] act like a man.” (/d., {] 39, 40.) Captain Kelly
also suggested to Hicks that he should drop his complaints of sexual harassment by Ms. Wilson
because “it wasn’t going to go anywhere.” (Id., 1 41.)

On or about July 26, 2002, Hicks called and spoke with Assistant Director Barasch about

Ms. Wilson’s sexually abusive and offensive: ct. (Pl. SAF § 43 (deemed admitted for lack

of evidentiary support for denial).) Barasch a Hicks that Hicks’s packet of information

had been received and reviewed (it is unclear what packet Hicks is referring to), and that Barasch

had spoken with the Cook County legal departm (Id.) Barasch told Hicks that “everyone had

‘agreed that this was a terrible trauma that Hicks ‘was suffering,” but that the legal department said

that whatever an Aramark employee did on C 'y property would have to be handled by



“fuck him up” and told him that he will suffer if he does not leave this alone. (/d.) Hicks admits
that he said these things, but also claims that he told the investigator that Ms. Wilson told Hicks
also state that Hicks said that Ms. Wilson had. never come onto him in a sexual manner, never
asked him for sex, and never made any sexual comments to him. (Def. SF § 22; id., Ex. 12 at 2.)
Hicks denies that he said these things to the investigator. (Pl. Resp. { 22.) On October 21, 2002,
the EEOC issued a dismissal and right to sue fetter. (Def. SF 23.) On January 5, 2003, Hicks
filed a second EEOC charge. (/d., 424.) He subsequently requested a right to sue letter on that

charge, which was issued to him on January 10, 2003. Ud.) On January 15, 2003, Hicks filed his

initial complaint with this Court. (/d.,425.)

D. Alleged Retaliation and Interference with Hicks’s Conditions and Performance of
Employment a

Hicks states the certain actions were taken. against him in retaliation for filing his federal
lawsuit. On approximately three undated occasions, after Hicks would complain to Captain

Kelly about the harassment, Captain Kelly would assign Hicks to the “East Dock” for three to

four days, which Hicks characterized as highly di sagteeable because it is a secluded spot away
from everyone. (P]. SAF | 45.) Hicks claims that between January 23 and February 15, 2003, he
was assigned to the East Dock 13 times, which was more frequently than he had been assigned
there before."® (Id., 4 52(d).) Hicks characterizes the East Dock assignment as “punishment” and

pointed to the fact that he would have to wait for relief before he could go to the bathroom,

which on occasion took several calls and necessitated an apparently long (but not quantified)

'S Hicks also claims that this was more than any other officer who had not filed a lawsuit.
(d., 4 52(c).) Hicks offers no evidence of assignments of other officers, however.

16



comment upon the parties’ attempts to comply with Local Rule 56.1 (“L.R. 56.1”). LR. 56.1
requires that statements of facts contain allegations of material fact, and the factual allegations
must be supported by admissible record evidence.,, See L.R. 56.1; Malec v. Sanford, 191 F.R.D.
581, 583-85 (N.D. Il. 2000). The Seventh Circuit teaches that a district court has broad
discretion to require strict compliance with L.R. 56.1. See, e.g., Koszola v. Bd. of Ed. of City of
Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v, Kwon, 153 F.3d 481, 486 (7th Cir.
1998) (citing Midwest Imports, Ltd. v. Coval, TLE.3d 1311, 1316 (7th Cir. 1995) (collecting
cases)).

Each of the parties has made several errors in violation of L.R. 56.1. For example, Hicks
objects to many of DOC’s individual statements of fact because the paragraphs are neither short
nor concise. See L.R. 56.1(a) (“The statement [of material facts] shall consist of short numbered
paragraphs. ...”). The Court notes that while Hicks may be correct in his objection to
Defendant’s statements (see, e.g., Statement of Uncontested Facts In Support of Defendant’s
“Motion for Summary Judgment (“Def. SF”) | 10 (D.E. 38); Plaintiff's Response to Defendant’s
Rule 56.1(a)(3) Statement (“P1. Resp.”) { 10 (D.E. 44) (objecting), Hicks has committed the
same violation (see, e.g., Plaintiff's Affirmative Local Rule 56.1(b)(3)(B) Statement of Material
Facts As To Which There Is No Genuine Dispute (“Pl. SAF”) {7 (D.E. 48); Defendant’s Reply
to Plaintiffs Response to Statement of Uncontested Facts In Support of Defendant’s Motion for
Summary Judgment (“Def. Resp.”) 7 (D.E. 51) (objecting)). Thus, thé Court will simply
admonish both parties to please conform their pleadings to the rule in the future, and the Court
will do its best to work with what it has been given.

Defendant has also failed to provide the Court with a narrative of facts in its



For the reasons described above, Hicks, stablished a genuine issue of material fact as

to whether he suffered from actionable sexual harassment. In addition, Hicks has presented

sufficient evidence that, if true, would establish,that DOC had so customarily ignored his

complaints of sexual harassment as to constitute an “custom or usage” for the purposes of § 1983
Bie leh

ility.4 In Bohen » City of East Chicag 2, Indi

799 F.2d 1180 (7th Cir. 1986), a female
employee of the city fire department who had ined of continual sexual harassment sued
_athe city, alleging, inter alia, a deprivation of her t to equal protection under the law. After
finding that the plaintiff had established actio1 ual harassment and intent, the court
addressed § 1983 liability. The Seventh Circuit held that the plaintiff had established that the fire
department had a policy or custom because “sexual harassment [against female employees] was

the general, on-going, and accepted practice at the East Chicago Fire Department, and that high-

ranking, supervisory, and management officials responsible for working conditions at the

department knew of, tolerated, and participate the harassment.” Id. at 1189. Here, although

Hicks does not have the fact of a supervisor pi ating in the harassment, he has put forward

_gyidence in the form of his affidavit testim: at harassment by Ms. Wilson against him on

..account of his sex was on-going and was an accepted practice by DOC. Hicks has put forward

evidence that numerous supervisors, includ: relatively high-ranking officials, knew of the

...harassment and did nothing to stop it for at anda half years. Hicks also states that

Assistant Director Barasch, in a phone conversation with Hicks, “acknowledged and admitted

y

24 The express policy of DOC forbids behavior such as that Hicks complains of, and
Hicks has not argued or put forward any evidence that any of his superiors to whom he
complained were a “final policymaking authority.” Thus, Hicks may prevail only under the
econd prong of the “Monell policy test.”



McPherson, 379 F.3d at 438 (internal quotationomitted); accord Faragher v. City of Boca
Raton, 524 U.S. 775, 786 (1998). “To qualify as hostile, the work environment must be both

objectively and subjectively offensive, one that.a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be so.” McPherson, 379 F.3d at 438

(internal quotation omitted); accord Hostetler. “Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir.

2000). In determining whether Hicks’s work «

‘onment was objectively hostile, the Court

“must consider all of the circumstances, including the frequency and severity of the conduct;
whether it was threatening and/or humiliating OF inerely an offensive utterance; and whether the
harassment unreasonably interfered with her work McPherson, 379 F.3d at 438 (citing
” Wyninger v. New Venture Gear, Inc., 361 F.34,965, 975-76 (7th Cir. 2004).
Defendant argues that Hicks cannot establish that the alleged sexual harassment was
either subjectively or objectively sexually hostile. Defendant’s argument rests almost entirely on
evidence it apparently believes contradicts Bicks’s version of events. For example, Defendant

argues that Hicks admitted in the EEOC investigation that Ms. Wilson’s comments to him were

licks wrote to DOC did not contain allegations of

not sexual (see Def. SF 4 22) and that memos |
overtly sexual conduct (see id., Ex. 20, 22-23, 57). This evidence may ultimately prove that
Hicks’s version of Ms. Wilson’s actions is not correct or credible (a point that the Court does not
reach), but summary judgment is not the place to weigh such evidentiary matters. Hicks has
consistently alleged in this lawsuit that the conduct was overtly sexual, a fact within his personal
knowledge.

Hicks’s affidavit and deposition testimony alleges conduct that occurred consistently, as

often as every two or three weeks, throughout an almost two-year period. If true, Hicks was

25



IN THE UNITED STATES DISTRICT COURT

JOSEPH N. HICKS,
Plaintiff,

No. 03 C 0327

“Judge Mark Filip Do. br
mea

MICHAEL SHEAHAN, in his Official
Capacity, as Sheriff of COOK COUNTY
DEPARTMENT OF CORRECTIONS,
and COUNTY OF COOK, ILLINOIS,
d/b/a COOK COUNTY DEPARTMENT
OF CORRECTIONS,

Ne See

Defendants.
MEMORANDUM OPINION AND ORDER

Plaintiff Joseph N. Hicks (“Plaintiff” or. “Hicks”) filed a second amended complaint on
April 21, 2004, alleging that he was discriminated against in violation of Title VIE of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000¢e et seg., and 42 U.S.C. § 1983 by Defendant Michael
Sheahan, in his official capacity as Sheriff of Cook County and head of the Department of
Corrections (“Defendant” or “DOC”). Hicks alleges that Defendant subjected him to a sexually
hostile work environment, discriminated against him on the basis of his sex, violated his right to
equal protection under the law, and retaliated against him for pursuing his claims. Defendant
moves for summary judgment on all counts (“Motion”). (D.E. 37.) For the reasons explained
below, Defendant’s motion is granted in part and denied in part.

BACKGROUND

IL Local Rule 56.1

Before reciting the factual background of this case, the Court finds it necessary to



put the employer on notice, this is not one of them.” Jd. at 614; see generally Faragher, 524
USS. at 807-08 (evidence that employee unreasonably failed to utilize complaint procedure
provided by employer can be evidence supporting defense of employer to charge of supervisor-
based hostile workplace environment claim). In Durkin, the victim’s complaints, the court noted,
were vague, and she never expressed her concern about matters of a sexual nature. Jd. Here, to
the contrary, Hicks has testified that he complained of the specific sexual details to his
siipervisors—ranging from Sergeant Page, his direct supervisor, to an assistant director of the
department. Defendant does not seriously argue that it would not have had notice of the
harassment from these verbal complaints if they were made; instead, Defendant asserts that Hicks
never made the verbal complaints at all and notes that Defendant responded promptly after the
December 2002 written complaint filed by Hicks. At the very least, Hicks has demonstrated that
a genuine issue of material fact exists as to whether DOC had actual notice of his complaint.

Hicks’s failure to follow the technical requirement of submitting his complaint in writing does

not automatically defeat this claim. Cf Meritor Savings Bank v. Vinson, 477 US. 57, 72 (1986)
(“[W]e reject petitioner’s view that the mere existence of a grievance procedure and a policy
against discrimination, coupled with respondent’s failure to invoke that procedure, must insulate
petitioner from liability.”).

In sum, Defendant has not established that there is no basis for DOC’s liability for its own

purported negligence, and Hicks has demonstrated there is a genuine issue of material fact as to

whether he was subject to a sexually hostile work environment. Thus, Defendant’s motion for

33



action. Compare Tart, 366 F.3d at 475 (adverse employment action where employees transferred
from desk job to digging trenches). Sergeant, Page improperly yelling at Hicks for wearing the
wrong type of work shoes (even assuming that Hicks was wearing proper shoes) is at most a
“trivial personnel action” that cannot provide the basis for a lawsuit. Hernnreiter, 315 F.3d at
745. The same can be said of most of the other actions of which Hicks complains. Being denied
access to a single filing cabinet does not significantly alter his working environment. DOC’s
alleged unsuccessful attempt to prevent Hicks from attending depositions did not change
anything in his working environment, given that he was able to attend both the depositions and
his rescheduled in-service training. Making Hicks take two drug tests as part of DOC’s policy of
random testing cannot be construed as adverse" in any event. And Hicks has provided no
evidence that DOC’s investigation into alleged sexual harassment by him of female Aramark
employees affected his ability to do his job2”’ (indeed, the DOC would have been derelict if it
did not investigate the multiple allegations that Hicks was a harasser.) In sum, these actions
described by Hicks simply do not constitute the kind of “significantly negative alteration in his
workplace environment” that would support a retaliation claim. Herrnreiter, 315 F.3d at 744.
The direction from DOC forbidding Hicks from bringing his complaints to Aramark
employees and instead requiring him to speak, to, his DOC supervisor comes closer to the level of
an adverse action, although it, too, is unlikely significant enough to constitute an objective
“hardship” in his workplace. Herrnreiter, 315 F.3d at 745. Hicks alleges that the direction

prevented him from obtaining the items he needed to complete his work for one to two hours.

27 Hicks describes the investigation as “exhaustive” but does not provide any detail of
how it affected him or his working environment. (See Pl. SAF 4 52(£).)

42



by noting that “it is not immediately clear that [the] employer liability standard should apply
because [the Argenbright employees] were contractors who were not directly employed by
Delta.” Jd. at 811. The court pointed to other circuits that have followed an EEOC guideline”
and have held that an employer may be responsible for the acts of non-employees where the
employer “knows or should have known of the conduct and fails to take corrective action.” Jd.

Citing 29 CER. 1604. 11(e); Lockard, 162 F3 at 1072-74; Waltman v. Int ‘| Paper Co., 875

F.2d 468, 479-81 (Sth Cir. 1989); Barbour v. Browner, 181 F.3d 1342, 1348-49 (D.C. Cir.
1999)). Importantly, the court expressed concer that these out-of-circuit cases might be read to
hold that an employer can be vicariously liable (i.e., liable without any independent showing of
employer negligence) under Title VII for sexual harassment committed by an employee of an
independent contractor, as opposed to being liable for its own negligence in addressing the
problem. Berry, 260 F.3d at 812. The former, the court reasoned, would appear to be in tension
with Supreme Court precedent. Id. (citing Hilerth, 524 US. at 754-60; Faragher, 524 US. at
801-04), The latter the Seventh Circuit apparently did not see as a concern, as it was expressly
distinguished by the court. See Berry, 260 F.3d at 812 (“To the extent that... cases provide that
an employer can be held vicariously liable under Title VII for sexual harassment committed by an
employee of an independent contractor (and not merely for its own negligence in addressing the

problem), they would appear to be in tension with recent Supreme Court precedent, since an

_.?° “An employer may also be responsible for the acts of non-employees, with respect to
sexual harassment of employees in the workplace, where the employer (or its agents or
Supervisory employees) knows or should have known of the conduct and fails to take immediate
and appropriate corrective action. In reviewing these cases the Commission will consider the
extent of the employer’s control and any other legal responsibility which the employer may have
with respect to the conduct of such non-employees.” 29 C.F.R. 1604.11(e).

28



with Ms. Wilson. (Def. SF J 31.) Precisely what was stated at that meeting is disputed,* but both
Hicks and Ms. Wilson signed a counseling agreement acknowledging personality conflicts and
that their conduct was unacceptable, and agreting to. work and cooperate in the future.” (/d.; Def.
SF, Ex. 21.)

On September 23, 2001, a verbal altercation occurred between Hicks and Ms. Wilson
involving a supposedly unsupervised inmate inthe kitchen. (Def. SF {{ 35-37.) The incident

was observed by Aramark General Manager Cain. (Def. SF { 37.) When Hicks reported the

incident to Sergeant Janak, Ms. Wilson entered the office and yelled that she was supervising the
inmate. (Def. SF { 36 (deemed admitted for lac! denial of this statement.) Hicks then began
yelling as well. (/d. (deemed admitted for lack of denial of this statement).) Sergeant Janak

informed Ms. Wilson that Hicks was correct that the inmate should not have been in an

unauthorized area. (Jd. (deemed admitted for lack of denial of this statement).) Ms. Wilson
stated that she was tired of being harassed by Hicks and that she would be “notifying the proper
people.” (Id. (deemed admitted for lack of denial of this statement).) Sergeant Janak instructed
Ms. Wilson to calm down and leave the office, which she did. (/d. (deemed admitted for lack of
denial of this statement).) Hicks stated that he had “lots of documentation” and was “going to
get her” for harassing him also. (/d. (deemed admitted for lack of denial of this statement).) At

the end of this altercation, Correctional Officer Redmond, who had observed the incident, told

® Hicks disputes that Ms. Wilson stated that Hicks had made a sexual advance toward her
in. 1998. (PI. Resp. 931; Pl. SAF § 31.)

® Hicks’s statement in his response to Defendant’s statement of fact that he was coerced
to sign the counseling memo is not properly before.the Court because it does not constitute a
denial. we

my)



Aramark." (Id.) At that same time, Barasch acknowledged and admitted that if such sexually
abusive and offensive conduct had been committed by Hicks against a female, Cook County
would have acted quickly and terminated Hicks’s employment." (ld., 4144)

On September 25, 2002, Hicks filed a charge with the EEOC. (Pl. SAF 48; id., Ex. C.)

The charge listed discrimination on the basis 0: ex, and stated, “Since December, 2000 I have

had at least three incidents with one of Aramar female kitchen managers. This individual has
been crudely verbally abusive to me.” (/d.) “After Hicks filed the EEOC charge, Ms. Wilson’s
shift changed, resulting in her not crossing paths ‘with Hicks. (Pl. SAF 48.)

: Precisely what was reported by Hicks during the EEOC investigation is disputed by the

parties. The EEOC investigator’s notes show that when asked for details of what Ms, Wilson did

to him, Hicks reported that on three occasions. Wilson lifted her smock, pointed at her

behind, and said that he could “kiss her ass”. . SF § 21; id., Ex. 12 at 2.) The investigator’s

‘notes say that Hicks said that Ms. Wilson would ‘walk into his face and say that she was going to

® Defendant admits that Aramark would.have to handle the problem. (Def. Resp. { 43.)
The other statements are deemed admitted for lack of evidentiary support for the denial. (/d.)
Defendant objects to the statement on hearsay grounds, among other objections. (/d.) Defendant
does not specify why the statement that the legal department acknowledged that Hicks suffered a
trauma is hearsay (it may be a party admission). The Court believes, however, that Hicks is
offering the statement, not for the truth of th er asserted (since the legal department’s belief
is not relevant to the legal questions before the urt), but to show that DOC was aware of the
Ofigoirig actions by Ms. Wilson. See Fed. R. 801(c). Thus, the Court will accept the
statement for that purpose. :

a '4 This statement is deemed admitted
_..@¥idence from the record. (Pl. Resp. | 44.
specifying the grounds for the objection. Th
__for.the truth of the matter asserted (how DO
apparent managerial status of Barasch and D ant’s failure to inform the Court as to why
Barasch would have been making a statement, outside the scope of his employment, the Court
will accept this statement as an admission by a party-opponent. See Fed. R. Evid. 801(d)(2).

ist DOC for failure to support its denial with
fendant makes another hearsay objection without
believes that this statement is being offered
Id treat a male versus a female). Given the

15