IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES MUNDO, ) 

 ) 

 Plaintiff, ) 

 ) 

 vs. ) Case No. 20 C 2562

 ) 

CITY OF CHICAGO ) 

and JANICE HOGAN ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

James Mundo, who identifies as a gay man, is an employee of the Chicago Fire 

Department (CFD). Mundo has sued the City of Chicago alleging that it failed to take 

adequate measures to curtail extensive and disturbing sexual harassment to which 

Mundo was subjected by Janice Hogan, the former Deputy Chief of the CFD's Labor 

Relations Division, and others in the Department. Mundo asserts a hostile work 

environment claim under Title VII of the Civil Rights Act of 1964 against the City (count 

1); a claim under 42 U.S.C. § 1983 against Hogan for discrimination on the basis of sex, 

sexual orientation, and gender nonconformity (count 2); a section 1983 claim against 

the City under Monell v. Department of Social Services of the City of New York, 436 

U.S. 658 (1978) (count 3); and an Illinois Human Rights Act claim against Hogan (count 

5).1 The City has filed a motion for summary judgment on counts one and three. 

1 On August 3, 2021, Judge John Z. Lee granted the City's motion to dismiss count four, 

a claim asserted against the City under the Illinois Gender Violence Act. 

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Though Hogan joined in the motion, the motion does not challenge or request summary 

judgment on counts two and five, the counts asserted against Hogan. The Court

therefore construes the motion as seeking summary judgment only on counts one and 

three against the City. For the reasons set forth below, the Court denies the motion for 

summary judgment. 

Background

The following facts are undisputed unless otherwise noted. 

A. CFD

The CFD is a chain of command organization, with the Fire Commissioner at the 

top of that chain and career rank paramedics and firefighters at the bottom. Aaron 

DeCamp, then-General Counsel for the CFD, testified during his deposition that the 

general expectation is that lower ranked employees follow their superior's orders, with 

exceptions for orders that they believe are unsafe, unlawful, or unethical. 

On April 16, 2012, Jose Santiago became the Commissioner of the CFD and 

remained in that position until he retired on August 31, 2018 and was replaced by 

Richard C. Ford III. 

The City has a Human Rights Municipal Ordinance that prohibits discrimination 

and harassment based on sex, gender identity, and sexual orientation. The ordinance 

also prohibits retaliation for reporting such discrimination or harassment. The City also 

has a sexual harassment policy that describes the kind of conduct that is prohibited and 

the procedures an employee may follow to report an incident of sexual harassment. 

The City's Diversity and Equal Employment Opportunity Division (EEO) similarly has a 

policy outlining the process for resolution of complaints of discrimination and

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harassment brought by City employees, which it oversees. That policy states that 

complaints concerning CFD employees must be made in accordance with the CFD's 

General Orders. The CFD itself also has a sexual harassment policy and procedure. 

That policy states, in part, that complaints:

can be made to CFD supervisors, CFD's EEO Liaison (the Deputy

Commissioner of CFD Human Resources), or the City of Chicago's 

Department of Human Resources or through the appropriate union 

procedure, any complaint must be promptly forwarded by any CFD 

supervisor to the City of Chicago's Equal Employment Opportunity Office

or the Department of Human Resources, and liaisons must also promptly 

report any conduct which may constitute harassment or retaliation 

promptly, even if such conduct is not the subject of a formal complaint.

Defs.' LR 56.1 SOF ¶ 16 (quoting Ex. B - Stipulation I, ¶ 13). 

Fire Academy candidates receive training on matters involving sexual 

harassment and discrimination when they go through the Academy. In Hogan's 

approximately seven years as Deputy Chief of the CFD's Labor Relations Division 

(LRD), she attended a single, one-hour sexual harassment training session as well as 

one online ethics training session. 

B. Mundo's employment and early complaints of harassment

In August 2006, Mundo began his employment with the CFD as a

firefighter/paramedic. In January 2008, Mundo moved from his field-based position to 

an office-based role as an investigator in the CFD's Internal Affairs Division (IAD), 

where he remained until January 2013. While working in IAD, Mundo reported to 

Steven Malec, the Assistant Commissioner of Internal Affairs. Malec also identifies as a

gay man and has been employed by the CFD for almost thirty years. 

At some point during his tenure in IAD—it is unclear exactly when—Mundo told 

Malec that he experienced homophobic harassment while working as a firefighter/EMT 

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at Engine 112. Some of the instances of harassment that Mundo described during his 

testimony included: seeing gay pornography taped to lockers of those suspected to be 

gay; homophobic slurs being used in his presence to describe gay people; witnessing a 

crew refuse to help a transgender person on a medical call and being harassed for

helping the person himself; crew members making comments about his familiarity with 

the gay bars in a particular area to which the crew was called; witnessing a crew 

member refuse to render aid to someone inside a gay bar named Roscoe's; and crew 

members arguing with each other about having to sleep next to Mundo because he is 

gay. 

Malec testified during his deposition that, in response to Mundo's disclosure, he 

informed Mundo that the time frame during which he could have made a formal

complaint about the harassment had passed and that he would therefore not achieve 

any satisfaction from filing a complaint now. Malec also testified that the reason Mundo 

moved from the field to an administrative position in IAD was because "[h]e was having 

trouble at the firehouse. Everyone was harassing him." Malec Dep. 60:4-5. A person 

to whom the parties refer as "Chief Ciara" was also present for the conversation 

between Mundo and Malec regarding the harassment that Mundo reported 

experiencing. Malec also testified that both Chief Ciara and whoever was serving as 

the Fire Commissioner at that time "knew what was going on," id. at 71:15-17, regarding 

Mundo's "difficult[ies] at the firehouse." Id. at 60:18-19 and 72:1. 

Also during his tenure in IAD, Mundo reported to Malec that, despite his refusals,

a coworker named Michelle Coco had repeatedly asked Mundo if he or his husband 

Dave would provide her with their sperm because she wanted to get pregnant. Mundo 

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testified that he could not recall exactly when the complaint was made or what Malec 

said in response. Mundo further testified that he did not know if Malec did anything to 

address his complaint. 

C. Mundo begins working with Hogan

In January 2013, Mundo moved from his position in IAD to a position in LRD. 

Mundo remained in that position until he went on a medical leave of absence in October 

2018. Mundo has not returned to work following his leave of absence but remains a 

CFD employee. 

The reasons behind Mundo's move to LRD are somewhat disputed. The parties 

seemingly agree that there were discussions among City administrators—Mundo 

contends it was the Mayor; the City contends it was the Budget Office—about moving

uniformed members such as Mundo who were working in administrative positions back 

out into the field. Deputy Fire Commissioner Anthony Vasquez recommended to thenCommissioner Santiago that Mundo be transferred to LRD rather than back to the field

because LRD was short staffed. Mundo contends that Hogan specifically asked for him 

to be transferred to LRD, but Hogan testified during her deposition that she did not 

recruit Mundo to LRD. In his declaration, Malec stated that he supported Mundo in 

finding another administrative position when "his position was eliminated within Internal 

Affairs," because of Mundo's "fears of working in the firehouse." Malec Decl. ¶ 7. 

While in LRD, Mundo was supervised by Hogan, who was the then-Deputy Chief 

of LRD.

2 Hogan reported to Deputy Commissioner Vasquez. Because Hogan was a 

2 Hogan held the position of Deputy Chief of LRD from December 2011 to November 1, 

2018. 

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higher ranking command level officer than Mundo, he was generally—subject to some 

exceptions—required to obey Hogan's orders or face possible discipline. Hogan 

assigned Mundo his day-to-day tasks and responsibilities. As an officer, Hogan could 

recommend discipline for Mundo and also had the ability to directly initiate an 

investigation against him. Hogan also had authority to issue oral warnings to Mundo or 

other lower-ranking officers without approval from a higher-up. Suspensions and 

terminations, however, required the Commissioner's approval. 

Mundo's position in LRD did not have a job description, was not on the CFD's

organizational chart, and was not a regularly budgeted position. Mundo testified that his 

duties were "whatever [his] supervisor asked of [him]." Mundo Dep. at 30:17. In 

addition to his official LRD duties, Mundo also performed a number of personal tasks for 

Hogan at her request.

3 Mundo testified that he felt submissive to her and that he was 

essentially always at her beck and call. Regarding his belief about whether he needed 

to do what Hogan asked of him, Mundo testified that "there was always the threat of

returning [him] back to Engine 112. Would [he] rather walk to Chase Bank at Martin 

Luther King Drive or would [he] rather be back at the -- back at the fire house." Id. at 

351:6-10. 

D. Mundo's official complaint

On October 5, 2018, Mundo and his husband Dave met with Malec over lunch. 

During their meeting, Mundo handed Malec a six page, typed document listing a 

3 These tasks included, among other things: washing and putting gas in her car, doing 

her personal banking, returning clothes she had purchased, overseeing the repair of her

vacuum cleaner and washing machine, researching retirement homes and treatments

for varicose veins, taking pictures of her for her online dating profile, and driving her to 

meetings, doctor's appointments, malls, and other locations.

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number of instances of sexual harassment that he said he had experienced at Hogan's 

hands. Malec stated in his declaration that Mundo was crying as he presented this 

information and that said he was terrified of going back to the firehouse. 

The document was submitted into evidence as Exhibit 2 to Mundo's Local Rule 

56.1(b)(3) Statement of Additional Material Facts. The entries range from October 1, 

2016 to October 11, 2018. The reported incidents include, among other things: Hogan 

repeatedly asking Mundo to have sex with her and to masturbate in front of her (and on 

one occasion, onto her phone); hitting Mundo over the head; undressing in front of him 

at least twenty times; making comments about her genitalia and comparing it to a 

flower; saying that she and Mundo would be perfect together if he wasn't gay; using 

homophobic slurs; saying that she needed to "get laid"; and threatening to send Mundo

back to the field if he didn't comply with her demands. 

Regarding other instances of harassment, it is undisputed that Deputy 

Commissioner Vasquez made a homophobic comment to Mundo in Hogan's presence

while the two were studying for a paramedic competency test in Hogan's office. 

Vasquez made a statement along the lines of, "I can't believe you like sucking dick. 

You don't like women?" Mundo Dep. 191:5-193:6. Another employee named Sharisse 

Grassmuck referred to Mundo as "Adam's girlfriend" more than twenty times, and when 

Hogan heard Grassmuck refer to Mundo in that manner, she would laugh. 

On October 9, 2018, Mundo began his medical leave from CFD. Though Mundo 

alleges that his leave was necessitated by the emotional distress that Hogan's 

harassment caused him, the City contends there is no evidence to support that 

allegation. 

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E. Remedial action post-October 2018 complaint

Sometime after concluding his lunch meeting with Mundo, Malec reported 

Mundo's complaint to Commissioner Ford. Commissioner Ford notified Hogan's 

supervisor, Deputy Commissioner Vasquez, of the same. Malec also reported the 

complaint to Mark Pando in the EEO Division. Commissioner Ford determined that 

Hogan could remain in her senior management position until the conclusion of the 

investigation into Mundo's allegations, subject to some restrictions. 

On November 1, 2018, Deputy Commissioner Vasquez and DeCamp (the CFD's 

general counsel) met with Hogan to inform her of Mundo's complaint. Hogan admitted 

that she made the sexual comments she was accused of making and that they were 

inappropriate. Deputy Commissioner Vasquez and DeCamp told Hogan that she could 

remain in her position—subject to some modifications—throughout the course of the 

investigation. Hogan asked, however, to return to her career service rank of

firefighter/paramedic. Deputy Commissioner Vasquez granted that request, which 

resulted in Hogan's tenure in the LRD ending that same day. 

On December 10, 2018, individuals in the EEO Division interviewed Mundo about 

his allegations. The EEO Division also interviewed Hogan and seven other witnesses. 

Over a year and one-half later, on July 10, 2020, the EEO Division sent the results of its 

investigation to Commissioner Ford. The EEO Division sustained Mundo's allegations, 

determining that there was sufficient evidence to conclude that Hogan had engaged in 

sexual and sexual orientation harassment in violation of the City's EEO policy. The 

EEO Division recommended that Hogan receive a 60 day suspension. 

Commissioner Ford agreed with the recommendation, stating that Hogan 

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"violated the very policies she was responsible for educating others on" and had 

engaged in "willful ignorance of the policies." Pl.'s LR 56.1(b)(3) SOF, Ex. 14. Hogan 

did not begin serving her suspension until almost seven months later, on January 29, 

2021. Pando testified during his deposition that he would agree with the 

characterization of the time lag between Mundo's complaint and Hogan's suspension as 

"justice delayed." Pando Dep. at 105:12-14 ("Q: . . . Would you say that that's justice 

delayed? A: Yeah, I would say it's delayed."). 

F. Pre-October 2018 conduct and complaints

Prior to making his official complaint in October 2018, Mundo made other 

complaints about Hogan's conduct to Malec. Specifically, Mundo made numerous 

complaints to Malec about Hogan being excessively clingy, calling him at all hours, and 

constantly wanting to know where he was. Malec testified during his deposition that 

Mundo complained about Hogan calling him while she was taking a bath and drinking 

wine. Mundo contends that this occurred more than once, but Malec testified that he 

only recalled one such complaint. Malec further testified that at the time—though he 

now views Mundo's pre-October 2018 complaints in a different light—he did not believe 

these complaints triggered an obligation to report Hogan up the chain of command, so 

he did not do so. See Malec Dep. at 94:10-11 ("Thinking back now, yeah, [I] probably

should have said, you know, this should be reported. But it is what it is."). 

In his declaration, Malec stated that he observed that:

Janice Hogan was not shy or timid and when in some verbal discussions 

she showed that when needed she could fit in with the male locker room 

mentality that existed at the Chicago Fire Department. For instance I have 

heard Janice Hogan use words including shit, fuck, asshole, dick, pussy, 

cock, fucker, jagoff, suck, masturbate, cocksucker. On some occasions 

the discussions may have related to an investigation we were working on 

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but on other occasions the language was regarding her private life.

Malec Decl. ¶ 15(b). Malec further stated that Hogan would tell sexual jokes and make 

comments that included sexual innuendos, show him her toenail polish and other parts 

of her body, and openly discuss her sex life. Malec also stated that Mundo "complained 

to [him] that he was afraid he was going to be sent back to a firehouse if he didn't do 

everything Hogan wanted." Id. ¶ 16(i). 

G. The CFD's culture and environment

Malec stated in his declaration that "[t]here is a culture of sexual talk, banter and 

harassment at the CFD even at Headquarters. Because of this culture most employees 

are reluctant to report their harassment and instead just try to deal with it on their own." 

Id. ¶ 19(j). Malec further stated that:

The City has a poor and inconsistent record of disciplining CFD members 

that report sexual harassment . . . . It is not uncommon and even the 

culture at CFD for members to just take the abuse because it is better 

than the alternative of getting ridiculed and/or having supervisors never 

trust you again. There is an unwritten, Code of Silence that is well known 

within the ranks of the CFD and if someone breaks that Code, you would 

for-ever be labeled as a snitch and not a team player.

Id. ¶ 20(b), (h). Malec testified during his deposition that—based on his twenty-eight 

years with the CFD and things that he heard from others at the chief level—his opinion 

was that being labeled as a snitch involved "[being] labeled for the rest of your life on 

the Fire Department. And God forbid you need somebody's help in an emergency, you 

may not get it." Malec Dep. 206:24–207:2. 

Hogan similarly acknowledged during her deposition that she felt that there was 

an unwritten rule that violations should not be reported because "you could end up 

being retaliated against." Hogan Dep. at 81:20-82:11. Hogan further testified that it 

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was her belief that "women in the fire department are concerned with complaining about 

sexual harassment generally." Id. at 76:2-5. When asked why she made that 

statement, Hogan testified that nobody "liked" IAD, that it could "potentially be 

unnerving" to "open yourself up to sitting with an IAD investigator," particularly "if it's a 

female and a male." Id. at 78:2-9. She further testified that "there's a saying, 'tell a

fireman, tell a phone,' so everyone potentially -- if it's made public knowledge, it's a 

difficult situation." Id. at 78:12-15. 

H. Doe case

In 2018, the CFD was the subject of another sexual harassment-related lawsuit 

in this district, Doe v. City of Chicago, 18 C 3054 (N.D. Ill. 2018). In Doe, several 

female paramedics accused the City of having a pattern or practice of allowing

pervasive sexual harassment, gender discrimination, and retaliation to occur within the 

Department. Several witnesses were deposed regarding the Doe plaintiffs' allegations. 

During his deposition as part of discovery for that case, Field Chief Patrick Fitzmaurice 

testified to feeling that the sexual harassment liaison—the person to whom the plaintiffs 

were meant to report their alleged harassment—would not do anything because she 

was "there to cover it up; make it go away, not to deal with it." Pl.'s LR 56.1(b)(3) SOF, 

Ex. 5 at 162:2-3. 

In addition, the CFD's then-Discipline Officer, Chief Hogan—a different person 

from defendant Hogan—testified that a 2014 sexual harassment complaint made by a

woman named Robin Alvarez against Ambulance Commander George Bedon—who 

was the subject of some complaints at issue in the Doe case—was not investigated. 

Chief Hogan also testified to seeing pornography daily in the field. 

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Ambulance Commander Maggie Murphy testified that, after she filed a sexual 

harassment grievance in 2014, it "was never touched again. They never followed up." 

Pl.'s LR 56.1(b)(3) SOF, Ex. 6 at 119: 17-23. Jane Doe 2 testified that a CFD social 

worker discouraged her from continuing an order of protection against the person she 

alleged harassed her because something like that "could really ruin his career." Pl.'s LR 

56.1(b)(3) SOF, Ex. 7 at 190:17-19. An e-mail chain was also introduced in the case in 

which Malec received a complaint from a firefighter/paramedic named Barbara Muse 

with the subject: "Sexual Harassment/Discrimination and Retaliation." Minutes later, 

Malec forwarded Muse's e-mail to the person she had accused of harassment with the 

message, "FYI." Pl.'s LR 56.1(b)(3) SOF, Ex. 9. Finally, according to a declaration 

submitted by Jane Doe 2, a sign hanging in Engine 72's firehouse states: "What you 

see here, what you say here, what you hear here, stays here when you leave here." 

Pl.'s LR 56.1(b)(3) SOF, Ex. 13. 

I. OIG audit

After the CFD was the subject of multiple discrimination and sexual harassment 

lawsuits, the City's Office of the Inspector General (OIG) audited the CFD's policies and 

practices related to discrimination and sexual harassment. On April 14, 2021, the OIG 

published the findings from its audit. The OIG's report stated, in part, that:

• Notwithstanding their compliance with federal, state, and local laws—

CFD's polices, practices and training were insufficient to meet the unique 

challenges of CFD's workplace, environment and culture. 

• CFD's workplace environment and culture had the potential to make some 

members vulnerable to discrimination and sexual harassment.

• The EEO Division's mandatory training was "not adequately tailored to 

serve the needs" of CFD's "command and control structure, unique 

aspects of CFD's workplace, and tension arising from its history of overt 

racial and gender discrimination." Pl.'s LR 56.1(b)(3) SOF, Ex. 4 at 4. 

• "CFD's complaint reporting and investigation initiation procedures lacked

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privacy and left members vulnerable to retaliation." Id. at 5. "[F]ear of 

retaliation and concern that speaking up would cost one's career were two 

of the most common reasons CFD chose not to file discrimination or 

harassment complaints." Id. 

• CFD needed to "develop a strategy to include more safeguards to protect 

reporting members and victims from potential retaliation." Id. 

• The organization culture at CFD "plays a part in creating and sustaining 

norms and practices that can harm certain demographic groups." Id. at 7.

• CFD follows a strict chain of command structure with defined ranks. The 

Department sets clear expectations and responsibilities for members—an 

especially critical aspect of emergency operations—and gives superiors 

considerable power and responsibility. Lower ranks must follow orders." 

Id. at 11. 

J. Mundo sues

On April 27, 2020, Mundo sued Hogan and the City for various claims stemming 

from his alleged sexual harassment. The City has now filed a motion for summary 

judgment on all claims brought against it. 

Discussion

A. Preliminary matters - Local Rule 56.1

The City argues that the Court should disregard portions of Mundo's Local Rule 

56.1 filings as improper. Regarding Mundo's responses to the City's statement of facts, 

the City contends that Mundo fails to properly dispute certain facts or accurately cite the 

record for support. The City also contends that Mundo improperly asserts additional 

facts in his responses to the City's undisputed facts. The City further contends that 

Mundo inappropriately includes legal conclusions, argumentation, and hearsay in his

statement of additional facts that cannot be considered by the Court.

The Court agrees that some of Mundo's facts and responses are inappropriately 

conclusory, lack adequate or accurate citation to the record, or are unresponsive to the 

City's statements of fact. It is not necessary, however, for the Court to determine 

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exactly which statements should not be relied upon on summary judgment. Where 

appropriate, the Court notes what evidence it relies upon in making its decision and 

ignores evidence that fails to comport with the requirements of the Local Rules.

B. Count one – Title VII claim

Under Title VII, it is unlawful for 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 race, color, religion, sex, or national origin." 42 U.S.C. § 2000e–2(a)(1). 

Mundo contends that the City violated Title VII by failing to take appropriate action to 

address the hostile work environment created by Hogan's sexual harassment. See 

Lapka v. Chertoff, 517 F.3d 974, 982 (7th Cir. 2008) ("Hostile or abusive work 

environments are forms of sex discrimination actionable under Title VII of the Civil 

Rights Act of 1964."). 

To avoid summary judgment, Mundo must provide evidence from which a 

reasonable jury could find that his work environment was both objectively and 

subjectively offensive; the conduct was either severe or pervasive; it was based on his

membership in a protected class; and there is a basis for employer liability. Vance v. 

Ball State Univ. (Vance I), 646 F.3d 461, 469 (7th Cir. 2011). The City contends that

Mundo has not established a basis for employer liability, and that even if there were 

such a basis, the City has a viable Faragher/Ellerth affirmative defense that entitles it to 

summary judgment.

1. Employer liability 

The City contends that Mundo has failed to establish that there is a basis for 

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employer liability, as Hogan was not Mundo's supervisor for purposes of Title VII. To 

determine whether there is a basis for employer liability, the Court must determine first 

"whether the alleged harassment was perpetrated by supervisors or coworkers." Vance 

I, 646 F.3d at 469. If Hogan was Mundo's supervisor, then the City "is strictly liable for 

his harassment," subject to certain affirmative defenses. Nischan v. Stratosphere 

Quality, LLC, 865 F.3d 922, 930 (7th Cir. 2017); see also, Vance v. Ball State Univ. 

(Vance II), 570 U.S. 421, 428 (2013) (describing affirmative defenses). But if Hogan

was simply a coworker, the City "is liable only if it was negligent either in discovering or 

remedying the harassment." Nischan, 865 F.3d at 930 (internal quotation marks

omitted). 

The Supreme Court has explained that the controlling definition of a supervisor 

for the purposes of Title VII is an employee "empowered . . . to take tangible 

employment actions against the victim, i.e., to effect a significant change in employment 

status, such as hiring, firing, failing to promote, reassignment with significantly different 

responsibilities, or a decision causing a significant change in benefits." Vance II, 570 

U.S. at 431 (internal quotation marks omitted). Under the controlling definition from 

Vance II and governing Seventh Circuit caselaw, no reasonable jury could find that 

Hogan was Mundo's supervisor. 

Mundo attempts to confront the fact that Hogan did not officially possess power 

to hire, fire, promote, demote, or transfer him by arguing that Hogan effectively had 

such power. Specifically, Mundo contends that Hogan effectively had such power 

because she directed his day-to-day duties, dictated virtually all aspects of his working 

conditions, and had the authority recommend discipline against him. Mundo also 

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contends that Hogan could effectively remove him from his position because she had 

the ability to reassign Mundo subject only to a rubber stamp-type approval from Deputy 

Commissioner Vasquez, who would automatically accept such a recommendation from 

Hogan. 

Under binding Circuit precedent, Hogan's ability to control Mundo's working 

conditions and/or recommend discipline are insufficient for the purpose of establishing

employer liability under Title VII. See Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th 

Cir. 2016) (individuals were not "supervisors" even though they managed assignments, 

investigated complaints, and made disciplinary recommendations); see also,

Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008) (holding ability 

to direct performance and recommend discipline is not sufficient to be a supervisor);

Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 506 (7th Cir. 2004) (finding harasser who 

managed assignments, investigated complaints, and made discipline recommendations 

was not a supervisor). 

Regarding Mundo's latter contention, there is no evidence that Hogan's 

disciplinary recommendations gained automatic approval; in fact, there is some 

evidence in the record to the contrary. For example, Deputy Commissioner Vasquez

testified that, although Hogan "could have recommended [discipline]. It doesn't provide 

that it would be sustained." Vasquez Dep. at 46:3-10. Moreover, it is undisputed that 

all suspensions and terminations required the Commissioner's approval. 

In Velez v. City of Chicago, 442 F.3d 1043 (7th Cir. 2006), the Seventh Circuit 

squarely addressed the question of Title VII supervisory liability for hostile work 

environment claims as applied to the CFD's command structure. The Seventh Circuit

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held that, although the plaintiffs' commander had the authority to oversee aspects of 

their employment, he was not their supervisor for Title VII purposes because he could 

not directly affect the terms and conditions of their employment. Specifically, the court 

concluded that only the Commissioner had the final authority to hire, fire, demote, 

transfer, or discipline the plaintiffs, not their commander. Similarly, here, both 

Commissioner Santiago and Commissioner Ford testified during their depositions that 

Hogan did not have the authority to hire, fire, demote, transfer, or discipline. Hogan 

could only recommend such actions to Deputy Commissioner Vasquez, who would then 

pass the recommendation along to the Commissioner for a final decision. Velez is 

therefore binding and precludes Mundo's contention that Hogan was his supervisor for 

Title VII purposes. 

Mundo relies primarily on Kramer v. Wasatch County Sheriff's Office, 743 F.3d 

726 (10th Cir. 2014), but unlike Velez, Kramer is both non-binding and factually 

distinguishable. As the City correctly points out, unlike Hogan, the sergeant in Kramer

had the authority to directly take tangible employment actions including suspensions, 

reassignments, transfers, and relief from duty. The Tenth Circuit also noted the fact that 

the County had characterized the sergeant as a supervisor, but the Seventh Circuit has 

"consistently distinguished employees who are supervisors merely as a function of 

nomenclature from those who are entrusted with actual supervisory powers." Parkins v. 

Civil Constructors, 163 F.3d 1027, 1033 (7th Cir. 1998); see also, Velez, 442 F.3d at 

1047 ("[The] term [supervisor] has a specific meaning for purposes of Title VII."). 

Without the ability to directly hire, fire, demote, transfer, or discipline, Hogan

simply does not qualify as a supervisor for purposes of Title VII under the current Circuit 

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precedent. Because no reasonable juror could find that Hogan was Mundo's

supervisor, the need for the City to assert an Ellerth/Faragher affirmative defense is not 

triggered. 

2. Negligence

When, as in this case, a hostile work environment is claimed to have been 

created by a non-supervisor, the employer is liable only if it was negligent in discovering 

or remedying the conduct. Rhodes, 359 at 505-06. The Court must therefore assess 

whether Mundo has produced evidence from which a reasonable jury could conclude 

the City was negligent in its response to Mundo's complaints of a hostile work 

environment. See Nischan, 865 F.3d at 930. The Court concludes that he has. 

The City contends that the fact that it "took prompt and effective remedial action 

is dispositive." Paschall v. Tube Processing Corp., 28 F.4th 805, 813 (7th Cir. 2022). It

also contends that "[a]n employer's legal duty in co-employee harassment cases will be 

discharged if it takes 'reasonable steps to discover and rectify acts of sexual 

harassment of its employees.'" Parkins v. Civ. Constructors of Ill., Inc., 163 F.3d 1027, 

1032 (7th Cir. 1998) (quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 

(7th Cir. 1997)). The City is correct that an employer can avoid liability for harassment 

by taking "prompt and appropriate corrective action reasonably likely to prevent the 

harassment from recurring." Porter v. Erie Foods Int'l, Inc., 576 F.3d 629, 636 (7th Cir. 

2009) (emphasis added). But there are disputed questions of fact regarding how 

"prompt," "effective," or "reasonable" the City's actions were vis-à-vis sexual 

harassment at the CFD, and certainly regarding the likelihood that those actions would

prevent harassment from recurring. 

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A reasonable jury could find that the City promptly and effectively reported

Mundo's first official complaint up the chain of command shortly after it was made in 

October 2018. Malec reported the complaint to Commissioner Ford, who then notified 

Deputy Commissioner Vasquez. Malec also reported the complaint to the EEO 

Division. 

But a reasonable jury could also come to the opposite conclusion. Deputy 

Commissioner Vasquez and DeCamp did not sit down with Hogan until a month after 

Mundo made his official complaint, and in the interim they allowed her to remain in her 

then-current position. After their interview, Vasquez and DeCamp allowed Hogan to 

move back to her career service rank of firefighter/paramedic despite her admission that 

she had engaged in some of the conduct that Mundo accused her of. Moreover, the 

EEO Division did not begin conducting interviews of the parties and witnesses until 

another month after that (December 2018). Nor did the EEO Division complete its 

investigation until over a year and one-half later, on July 10, 2020. And despite 

Commander Ford's statement that he found Hogan's conduct to be "egregious," she did 

not serve her suspension until almost seven months later, on January 29, 2021. Finally, 

although Hogan and Mundo ceased working together the very same day he made his 

complaint to Malec, a reasonable jury could find that was due to Mundo taking medical 

leave, not any remedial action on the City's part. 

There is also ample evidence of Mundo's pre-October 2018 complaints to Malec 

and of Malec himself having witnessed some of Hogan's inappropriate behaviors. While 

working in IAD, Mundo disclosed harassment to Malec that was unrelated to Hogan, 

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namely, the harassment he experienced at Engine 1124 and the incident with Michelle 

Coco asking Mundo for his sperm. The City contends it cannot be considered to have 

been aware of those prior complaints or issues because they did not make their way

through the City's formal complaint process until October 2018. It further contends that 

"there is no evidence that Vasquez had any reason to know of the alleged harassing 

behavior until Plaintiff's October 2018 complaint." Defs.' Mot. for Summ. J. at 9. 

But Mundo has offered enough evidence to permit a reasonable jury to find that 

the City was sufficiently apprised of the problem, notwithstanding the existence of its

formal complaint procedure. Rhodes, 359 F.3d at 506 (an employer is considered to 

have constructive notice of a hostile work environment "where the harassment was 

sufficiently obvious."). Mundo has offered ample evidence about an overall culture of 

harassment at the CFD and the dozens of instances of harassment to which he was 

subjected to by Hogan, many of which were in the presence of others. 

As outlined above in the "Background" section of this opinion, there is also ample 

evidence that would permit a finding that reporting harassment and discrimination was

actively discouraged within the CFD, that the CFD's formal reporting process is flawed, 

and that sexual harassment and discrimination training within the CFD was lacking. 

According to the EEO investigation, Mundo started documenting Hogan's behavior as 

early as November 2016 but did not make a formal complaint until October 2018 for fear 

of retaliation and because he indicated Hogan had blackmailed him. That evidence is 

4 There is also evidence to suggest that another CFD member, "Chief Ciara," and the 

then-Fire Commissioner were aware of the harassment Mundo experienced at Engine 

112.

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bolstered by the results of the OIG audit and testimony from the Doe case.

5 

Moreover, Mundo claims to have been victimized by the same conduct, or at 

least the same sort of conduct, that was directed generally at gay and gendernonconforming people in the Department. A reasonable jury could find that the 

pervasiveness of activity that by its very nature targeted all gay and gendernonconforming workers in CFD was sufficient to establish constructive notice to the City

as to claims by particular workers. Finally, the City's contention regarding Deputy 

Commissioner Vasquez's lack of knowledge is unavailing given its concession that 

Vasquez himself engaged in at least one of the instances of allegedly harassing 

behavior at issue in this case. See supra at 7. 

Thus, the fact that the City had sexual harassment policies and procedures in 

place—and that they were deployed in Mundo's case—does not obviate the genuine 

factual dispute arising from the other record evidence of the City's negligence regarding 

workplace harassment. The Court therefore denies the City's motion for summary 

judgment on count one.6

5 Under Federal Rule of Evidence 408, the City disputes the use of the settlement in 

Doe to establish negligence in this case. But the Court is not considering the fact that 

Doe resulted in a settlement as evidence of negligence. Rather, the Court considers 

only the underlying record evidence offered in that case. Levy v. Wilkie, 841 F. App'x

987, 994 (7th Cir. 2021) ("'But we have noted that deposition testimony from previous 

cases can be used at summary judgment just as affidavits can.'") (quoting Alexander v. 

Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014)).

6 The City also contends that, to the extent that count one asserts a discrimination 

claim, it is entitled to summary judgment because Mundo has not offered evidence that 

he was subjected to an adverse employment action as required by such a claim. But as 

clarified in Mundo's response, count one asserts a claim of hostile work environment—

not discrimination—so no showing of an adverse employment action is required. The 

Court therefore need not discuss the City's contention further. 

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F. Count three – Monell claim

"To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that he 

or she was deprived of a right secured by the Constitution or the laws of the United 

States, and that this deprivation occurred at the hands of a person or persons acting 

under the color of state law." D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th 

Cir. 2015). Section 1983 claims against municipalities, or Monell claims, require a 

plaintiff to show that she was "deprived of a federal right, as a result of an express 

municipal policy, widespread custom, or deliberate act of a decision-maker for Cook 

County, which proximately caused his injury." Davis v. Carter, 452 F.3d 686, 691 (7th 

Cir. 2006); see also Monell, 436 U.S. 658. 

In general, section 1983 claims alleging equal protection violations due to sexual 

harassment "follow[] the contours of Title VII claims." King v. Bd. of Regents of Univ. of 

Wis. Sys., 898 F.2d 533, 537 (7th Cir. 1990). One difference between the two claims, 

however, is that on an equal protection claim, "the defendant must intend to harass,"

whereas that is not required under Title VII. Id. Intent can be demonstrated by 

evidence of deliberate indifference, or evidence of officials' "aware[ness] of the risk 

created by the custom" and their "fail[ure] to take appropriate steps to protect" Mundo

from it. Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010); see 

also, Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002) ("The Supreme Court 

has defined deliberate indifference in this context to mean that a reasonable 

policymaker [would] conclude that the plainly obvious consequences of the City's 

actions would result in the deprivation of a federally protected right.") (internal quotation 

marks omitted). 

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Mundo does not contend that the City had an express policy whose enforcement 

was unconstitutional or that a person with final policymaking authority caused him to 

suffer a constitutional injury. Instead, he contends that the City had a widespread 

practice or custom of permitting sexual harassment and discrimination based on sexual 

orientation and gender non-conformity. The City contends that "sexual harassment was 

not condoned as a cognizable, well-settled custom or practice" and that it was not 

deliberately indifferent to the known or obvious consequences of its inaction vis-à-vis 

harassment in the Department. Defs.' Mot. for Summ. J. at 12. 

As with its challenge to Mundo's Title VII claim, the City largely focuses on the 

fact that its employees are protected by multiple layers of policies and procedures 

aimed to prevent and penalize sexual harassment. It cites to four other complaints of 

sexual harassment that were investigated by the EEO Division during the relevant 

period and the fact that discipline was administered on all of them. 

But as the City states, this evidence might "undermine[] [Mundo's] theory of a 

department that is complacent to and condones sexual harassment," but whether and to 

what extent that evidence dooms Mundo's Monell claim is a question for the jury. Id. at 

13 (emphasis added). As noted above, Mundo has offered ample evidence that would 

permit a reasonable jury to conclude that the City was aware of a pattern of allowing its 

members to sexually harass and discriminate against gay and gender-nonconforming 

people, notwithstanding its written policies to the contrary. In particular, given the 

evidence that the CFD suppressed or discouraged the reporting of incidents, a 

reasonable jury could find that any figure that the City provides to show that reports of 

harassment were made and properly investigated by the EEO Division underestimates 

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the true number of incidents. 

Mundo contends that, not only was he subject to severe and persistent 

harassment by Hogan and others at the CFD, but other employees were as well 

because the Department's culture and environment allowed harassment to flourish and 

discouraged anyone from reporting it. Mundo offers, among other things, his own 

deposition testimony, the EEO Division's investigative report, Malec's deposition 

testimony and affidavit, deposition testimony and affidavits from the Doe case, and the 

OIG's findings from its audit of harassment and discrimination at the CFD. There is 

evidence that investigations (including Mundo's) were often delayed, that employees 

were discouraged from reporting, and that the CFD often offered those accused the 

opportunity to resign or move to another position of their choice rather than face 

discipline. For example, Mark Pando of the EEO Division testified during his deposition 

that, even for reports of harassment that he thought warranted termination, he would not 

recommend termination if he believed it would not be upheld on an appeal brought by 

the employee. He further testified that:

[I]f we were in a non-union setting or non-career service setting, you know,

if somebody, you know, engages in even like small infractions, most 

employers would terminate those – those individuals who engage in the

violations. And -- and unfortunately here at the City, we -- we can't just

terminate employees because, again, it's -- it's -- the standard's gonna be

very high for us to try to prove that they should be terminated.

Pando Dep. at 160:17-161:4. Malec also testified during his deposition that he was 

aware of instances "where someone complained about sexual talk or banter and their 

complaint was ignored." Malec Dep. at 160:18-20. He further testified:

The latest one is probably the most noteworthy with all the -- this sexual

harassment and gender-based Jane Doe complaints. Half of those were 

ignored by the bosses. Some of the conduct was committed by their 

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bosses. I got 28 years of knowledge of things that happened, complaints 

that were made and complaints that were initially ignored and then 

investigated. So, yeah, it happened -- happens. 

Id. at 160:23-161:7. Indeed, as stated earlier, Mundo presented evidence that Malec

himself did not act on complaints of harassment that Mundo brought to him prior to 

October 2018. And when Malec was asked if he had any reason to believe that 

Commissioner Santiago would have tolerated a homophobic atmosphere at the CFD, 

he replied, "[d]epends who it was and if he could get away with it." Id. at 127:19-20.

There is also evidence that the City provided only minimal training on preventing 

and reporting sexual harassment and discrimination. See City of Canton v. Harris, 489 

U.S. 378, 390 (1989) (stating that deliberate indifference can be found when "the need 

for more or different training is so obvious, and the inadequacy so likely to result in the 

violation of constitutional rights"). Jane Doe 1 from the Doe case testified that the 

training on sexual harassment at the Academy consisted of someone starting a video 

and leaving the room while everyone talked over it. She further testified that "[n]o one 

takes it seriously." Pl.'s LR 56.1(b)(3) SOF, Ex. 11 at 398:17-24. And as previously 

stated, Hogan herself only attended two sexual harassment or ethics-related training 

sessions in her seven years as the Deputy Chief of LRD. 

The City makes several arguments about Mundo's inability to identify others who 

were harassed and were too fearful to report it, or who did report it and were ignored 

and/or retaliated against. The City also makes arguments regarding the immateriality of 

the report from OIG's audit or the Doe case. These arguments are contrary to settled 

law regarding how a court considering a summary judgment motion considers evidence

and draws inferences. "On summary judgment, a court may not weigh the evidence or 

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decide which inferences should be drawn from the facts." Costello v. Grundon, 651 

F.3d 614, 636 (7th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 

106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "Rather, the court's task is to determine 

based on the record whether there is a genuine issue of material fact requiring trial." Id. 

In doing so, a Court is required to draw reasonable inferences in favor of the nonmoving party—in this case, Mundo—not the other way around. See, e.g., Johnson v. 

General Bd. of Pension & Health Benefits of United Methodist Church, 733 F.3d 722, 

727 (7th Cir. 2013). Thus, although Mundo's apparent inability to name names might 

lead a jury to disbelieve him, it is not an appropriate basis for the Court to discount his 

testimony when assessing whether summary judgment is warranted. In any event, it is 

hardly surprising that Mundo may not know the particulars of many other CFD members'

personal experience with harassment or the inadequacy of the City's response to it. 

That is a feature of Mundo's claim, not a bug. Moreover, though the City's attacks on 

the materiality of the OIG audit report and evidence from the Doe case may affect the 

weight the jury should give that evidence at trial if it is admitted, they do not entitle the 

City to summary judgment. 

In sum, on the record before the Court, a reasonable jury could find that the City 

knew of the widespread sexual harassment problem occurring in the CFD and was 

deliberately indifferent to it. Even if the City did have some safeguards in place to 

address the issue of harassment within the Department, its failure to consistently, 

promptly, and effectively employ these measures supports a finding of deliberate 

indifference. At trial, the jury will evaluate the measures that the City adopted and 

determine whether the City was deliberately indifferent in spite of them. At this stage, 

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however, all Mundo must show is that there is sufficient evidence for the trier of fact to 

reasonably conclude that the City's remedial actions were so lacking that they suggest 

that it was deliberately indifferent to the problem. Mundo has done so.

The Court therefore denies the City's motion for summary judgment on count 

three.

Conclusion

For the foregoing reasons, the Court denies the City's motion for summary 

judgment [dkt. no. 116 & 117]. The case is set for a telephonic status hearing on June 

1, 2023 at 9:05 a.m. to set a trial date and discuss the possibility of settlement. The 

following call-in number will be used: 888-684-8852, access code 746-1053.

________________________________

MATTHEW F. KENNELLY

 United States District Judge

Date: May 18, 2023

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