hold the opposite of Vakharia but a later opinion issued in that case acknowledged the

change in the applicable law. Vakharia v. Swedish Covenant Hosp., 987 F. Supp. 633,
635-36 (N.D. Ill. 1997). In addition, the cases Ekerman cites from other circuits that

would support her position are no longer good law within those circuits. See Wathen

y. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997); Haynes v. Williams, 88 F.3d
898, 899 (10th Cir. 1996) (reiterating, despite Ball v. Renner, 54 F.3d 664, that 10th
Circuit caselaw holds that individual supervisors are not subject to liability under Title
VID); Grant v. Lone Star Co., 21 F.3d 649, 652, 653 (Sth Cir. 1994) (reversing district
court’s imposition of liability on branch manager under Title VID); Harvey v. Blake, 913
F.2d 226, 227-28 (5th Cir. 1990) (specifically rejecting to read Hamilton v. Rodgers as
allowing individual liability under Title VID .

Ekerman’s complaint contains no indication that the Hillard, Lesniak, Mahnke,
Reppen, and Chambers would fit Title VII’s definition of “employer.” It alleges only
that they, like Ekerman, were City employees. As such, any claims premised on Title
VII against those five defendants cannot stand and are dismissed.

Municipal Liability Under § 1983

With regard to the claims brought under 42 U.S.C. § 1983, Ekerman first
attempts to bring ari action against the City itself. To establish municipal liability,
Ekerman must allege enforcement of an express policy that violates her federal rights,

a widespread practice so pervasive and accepted that it takes on the force of law, or a

-4.


recognition of a plaintiff's physical stature. See Dothard v. Rawlinson, 97 S.Ct. 2720,

2726 (1977) (holding that employer’s decisions based on a facially neutral height
standard must show a significant discriminatory pattern to establish an equal protection

violation); Dey v. Colt Construction and Development Co., 28 F.3d 1446, 1456 (7th Cir.

1994) (holding that a single remark cannot create a hostile work environment). The
slight Ekerman suffered at the comment about her height does not implicate her sex or
membership in any other protected class, so there can be no violation of her equal
protection rights, and Lesniak is entitled to qualified immunity. Huebschen, 716 F.2d
at 1171.

Finally, we must examine Ekerman’s claim of First Amendment retaliation,
which implicates the other four individual defendants. These claims fail for two
reasons. First, to be protected by the First Amendment, a plaintiff’s speech must relate
to a matter of public concern. Connick v. Myers, 103 S.Ct. 1684, 1689 (1983). In the
context of sexual harassment in the workplace, if complaints of sexual harassment are
motivated only by a desire to end the harassment, the speech does not relate to a matter
of public concern and therefore cannot form the basis of a retaliation claim See, e. Ls

Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469, 482-83 (7th Cir. 1995); Gray
y. Lacke, 885 F.2d 399, 411 (7th Cir. 1989). Second, Ekerman’s responses premise the


facts sufficiently setting forth the essential elements of the cause of action. Lucien v.

Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). With these principles in mind, we turn

to the instant motions.
DISCUSSION
As an initial matter, the City points out that although the complaint names the
Chicago Police Department as a defendant, the department is a division of the City and

has no independent legal existence. Reese v. Chicago Police Dept., 602 F. Supp. 441,

443 (N.D. Ill. 1984). As such, the department is not suable and it is dismissed; indeed,
because the complaint also names the City, mention of the department is redundant. See
McCraven v. City of Chicago, 18 F. Supp. 2d 877, 881 (N.D. Ill. 1998).
Title VII

Hillard, Lesniak, Mahnke, Reppen, and Chambers all move to dismiss the
portions of the complaint that attempt to impose liability on them pursuant to Title VII.
They correctly assert that Seventh Circuit caselaw clearly establishes that supervisors
cannot be sued under that statute because they would not be considered employers for
Title VII purposes. See Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995); see also

EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995) (holding

that supervisors cannot be subject to individual liability under the ADA). Ekerman

disagrees, citing language from Vakharia v. Swedish Covenant Hosp., 824 F. Supp. 769,

785 (N.D. Ill. 1993). She ignores the fact that not only did Banning and AIC explicitly

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federal injury caused by a city official with final policymaking authority. Ineco v. City

of Chicago, 286 F.3d 994, 998 (7th Cir. 2002); McCormick v. City of Chicago, 230

F.3d 319, 324 (7th Cir. 2000). Ekerman has chosen to pursue the third route, arguing
that Hillard, Lesniak, and Mahnke are high-ranking officials with policymaking power
whose alleged constitutional wrongs against her can be imputed to the City. Even
assuming that the actions of these defendants rose to the level of an injury of
constitutional proportions, as a matter of law they are not policymakers for the City and
their actions cannot be a basis for municipal liability under § 1983. Neither the
Superintendent of Police, here Hillard, nor lower-ranking officers, such as Lesniak and
Mahnke, are the final policymaking authority for matters involving the Chicago Police
Department. See, e.g., Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir. 1992). This
deficiency leads to the inescapable conclusion that Ekerman has not alleged a proper
claim against the City under § 1983. ,
Individual Liability Under § 1983

All five individual defendants have asserted qualified immunity from Ekerman’s
§ 1983 action. It thus becomes her burden to show they are not entitled to the defense.
Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999). To shoulder this burden,
Ekerman must pass the threshold hurdle of showing a deprivation of a right, privilege,

or immunity secured by the Constitution or laws of the United States. 42 U.S.C.


individual liability of Hillard, Mahnke, Chambers, and Reppen! on her assertion that
they held final policymaking power for the City. Even if this were an accurate
characterization of the authority of these defendants (which, as discussed above, it is
not), the ability to set policy for the municipality is irrelevant to individual liability
under § 1983. In short, Ekerman has failed to allege any violation of her federal rights
by Hillard, Mahnke, Chambers, or Reppen, and therefore they are qualifiedly immune
from her suit.
CONCLUSION
Based on the foregoing analysis, we dismiss all claims against the Chicago

Police Department, Lesniak, Hillard, Mahnke, Reppen, and Chambers. The § 1983

claims against the City are also dismissed.

Charles P. Kocoras
United States District Judge

Dated: May 15, 2002

‘In point of fact, Ekerman filed no response to Reppen’s motion to dismiss.
Given the identical nature of her responses to the positions of the other defendants, we
presume that she would have made this argument with regard to Reppen as well.

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Minute Order Form (06/97)

, oo” United States District Court, Northern District of Illinois
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 01 C 9686 DATE 5/15/2002
CASE Ekerman vs. City of Chgo et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) a] Filed motion of [ use listing in “Motion” box above.]

(2) i) Brief in support of motion due

(3) Oo Answer brief to motion due . Reply to answer brief due.

(4) Oo Ruling/Hearingon____setfor se at__

(5) a Status hearing set for 9/16/2002 at 9:30 A.M..

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :

1) o Trial[set for/re-set for] on at

(8) o (Bench/Jury trial] [Hearing] held/continued to at

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

OFRCP4(m) O General Rule 21 OFRCP4I1(a)(1) [1 FRCP41(a)(2).

(io) [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Pending motions
(Docs 10-1, 11-1, 14-1 & 15-1) to dismiss are granted. We dismiss all claims against the Chicago Police
Department, Lesniak, Hillard, Mahnke, Reppen, and Chambers. The § 1983 claims against the City are
also dismissed. Defendants are given to May 29, 2002 to answer the remaining claims in the complaint.
All discovery to be completed by September 16, 2002.

(il) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices
Notices mailed by judge's staff. MAY 1 6 2002
Notified counsel by telephone. date docketed

oS | Docketing to mail notices.

Mail AO 450 form. reer sq } ‘4
Copy A ovmasistrat judge.

wh date mailed notice
courtroom gute

scT deputy's
initials

‘Date/time received in
central Clerk's Office trailing deputy intals



§ 1983. Without a statutory or constitutional violation, the defense remains intact.
Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001).

The complaint relies on only two statutes, Title VII and § 1983. Neither will
suffice to underlie Ekerman’s § 1983 claims. As stated earlier, the individual
defendants are not “employers.” Thus, none of their behavior is actionable under Title
VI, and Ekerman cannot allege Title VII violations by those parties as a foundation for

§ 1983 liability. | See Huebschen v. Dept. of Health and Human Servs., 716 F.2d

1167, 1170-71 (7th Cir. 1983). Furthermore, Ekerman cannot use § 1983 itself for this
purpose. Besides the absurd tautology that would result, it is well settled that § 1983
is not an independent fount of federal rights but only the mechanism for obtaining
vindication of rights conferred elsewhere. Graham v. Connor, 109 S.Ct. 1865, 1870-71
(1989).

If Ekerman is to defeat defendants’ assertion that they are entitled to qualified
immunity, therefore, she must show a violation of her constitutional rights. Her
complaint alludes to two separate areas: sexual harassment prohibited by the equal
protection clause of the Fourteenth Amendment and unlawful retaliation for First
Amendment activities, namely lodging complaints of the alleged sexual harassment.

The City argues that Ekerman’s allegations of harassment by Lesniak involve
only his isolated comment about her height. Employment decisions based solely on

height do not violate the equal protection clause; neither can a coworker’s mere

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GLORIA M. EKERMAN,
Plaintiff,

vs.

Department, an entity of the Chicago City
Government; Terry Hillard; Dennis Lesniak;
Gerard Mahnke; Penelope Trahanas,

Kevin Reppen and Diane Chambers,

)
)
)
)
CITY OF CHICAGO; Chicago Police ) 01 C 9686
)
)
)
)
)
Defendants. )

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:

This matter comes before the court on motions to dismiss by Defendants City of
Chicago (“the City”), Terry Hillard (“Hillard”), Dennis Lesniak (“Lesniak”), Gerard
Mahnke (“Mahnke”), Kevin Reppen (“Reppen”), and Diane Chambers (“Chambers”).
For the reasons set forth below, the motions are granted.

BACKGROUND

Plaintiff Gloria Ekerman (“Ekerman”) is a police detective for Defendant City
of Chicago (“the City”). According to the complaint, beginning in December 2000
Ekerman was subjected to various remarks made by Deputy Chief of Police Dennis

Lesniak (“Lesniak”), which she contends created a hostile work environment. Ekerman

PNa


complained about this behavior both to the EEOC and to other superior officers. She
alleges that Superintendent of Police Terry Hillard (“Hillard”), Commander of
Detectives Gerard Mahnke (“Mahnke”), Sergeant Kevin Reppen (“Reppen’”), and Police
Nurse Diane Chambers (“Chambers”) took retaliatory action against her for making
these complaints. The actions in question included transfer from the Domestic Violence
Unit to the Property Crimes Unit, deprivation of medical leave, and performance ratings
that were lower than her work warranted.

The City, Hillard, Lesniak, Mahnke, Reppen, and Chambers have moved to
dismiss certain counts of the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6).

LEGAL STANDARD

The purpose of a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) is to test the legal sufficiency ofa complaint. Triad Associates, Inc. v. Chicago
Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to dismiss, the
court must construe the allegations of the complaint in the light most favorable to the
plaintiff, and all well-pleaded facts and allegations in the complaint must be accepted

as true. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

The allegations ofa complaint should not be dismissed for failure to state a claim
"unless it appears beyond a doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46

(1957). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege

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