Bohen v. City of East Chicago, Ind.

• Decision Date: 11 September 1985
• Docket Number: Civ. No. H 83-0484.
• Citation: 622 F. Supp. 1234
• Parties: Hortencia BOHEN, Plaintiff, v. The CITY OF EAST CHICAGO, INDIANA, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

622 F. Supp. 1234

Hortencia BOHEN, Plaintiff, v. The CITY OF EAST CHICAGO, INDIANA, et al., Defendants.

Civ. No. H 83-0484.

United States District Court, N.D. Indiana, Hammond Division.

September 11, 1985.

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Milan D. Tesanovich, Portage, Ind., Ivan E. Bodensteiner, Linda D. Moskowitz, Valparaiso, Ind., for plaintiff.

Anthony DeBonis, Jr., Janet Bowermaster, Murphy, McAtee, Murphy, East Chicago, Ind., for defendants.

OPINION

EASTERBROOK, Circuit Judge.^*

Hortencia Bohen worked at the fire department of the City of East Chicago between December 3, 1979, and May 9, 1983. She was a dispatcher. Dispatchers usually work in teams of two on eight hour shifts. Each dispatcher works five shifts per week. Nine or ten dispatchers (the department's usual complement) can maintain 24 hour service while permitting vacations and time off.

Dispatchers receive calls about fires and medical emergencies. They must know the nature of the building at almost every address in East Chicago in order to know what equipment to send to a fire, and they also must know the function and location of all of the department's equipment. The job calls for knowledge and the ability to remain calm under stress. Knowledge and a prompt, calm response may save lives.

Bohen, whose national origin is Mexican, complained in 1982 to the Equal Employment Opportunity Commission that the department had discriminated against her on account of her sex and national origin. She protested harassment by Solomon Ard, the Fire Chief, and discrimination in the administration of discipline. According to the charge, both white and black dispatchers had escaped discipline for events that, when committed by Bohen, had led to admonitions. Before the EEOC could make a preliminary determination, Bohen asked for and received a letter giving her the right to sue. The letter was dated May 9, 1983. Bohen received another, less welcome, letter dated May 9. This one was from James Dawson, Deputy Chief in charge of personnel. Dawson's letter fired Bohen, explaining: "We have tried to be as tolerant as possible of your irrational actions. Your behavior has gotten to the point where good order and discipline on the Department has been jeopardized. Some of the problems that you have created have been manifested in other areas of the Department. We in the Fire Administration have come to the conclusion that a person of your character would be counter productive to good order, discipline and security."

Bohen makes three claims: first, that she was the victim of sexual harassment and assault at the department, which she says violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the fourteenth amendment to the constitution, for which 42 U.S.C. § 1983 supplies the remedy; second, that she was fired in retaliation for filing a complaint with the EEOC, which she maintains violated Title VII, the first and fourteenth amendments, and 42 U.S.C. § 1981; third, that she would not have been fired but for her sex and national origin, which she says violated Title VII and both the thirteenth and fourteenth amendments. A bench trial was held on August 16, 19, and 20, 1985. This opinion contains the findings and conclusions required by Fed.R.Civ.P. 52(a).

The evidence demonstrates that Bohen was the victim of sexual harassment on the job, but that she was fired for obstreperous and insubordinate conduct. The charge filed with the EEOC, her sex, and her national origin did not cause or contribute to the discharge. Because she was not disciplined or discharged for resisting the sexual advances or protesting the sexually offensive speech, she cannot establish any entitlement to back pay or reinstatement; because the fourteenth amendment does not independently prohibit sexual advances and innuendo, and the remedies under Title VII are limited to back pay, reinstatement, and similar equitable relief, the defendants are entitled to judgment.

I

Dispatchers usually work in pairs. They sit at a small console in the communications room of the main fire station. The console contains telephones, radios and other equipment for dispatching fire trucks and medical teams and for communicating with the men in the field. ("Men" here is not global for "people." The department has never had a female firefighter.) The room also contains two tape recorders, one making a permanent record of all conversations on the telephones and the other usually set to record but also available to replay any recent conversation. The dispatchers must sit close together while working.

The communications room adjoins the apparatus floor of the main fire station. On the other side of the apparatus floor is the administrative wing, with offices for the fire chief, deputy and assistant chiefs, and staff, and space for training. The firefighters work 24-hour shifts (one day on, two days off) and live above the apparatus floor. The communications room contains a small lounge with chairs, TV, and a coffee pot. The ranking administrators of the department (including fire captains) sometimes congregate in this lounge, although they are not supposed to do so; on occasion active firefighters also visit the lounge.

Shortly after joining the department, Bohen was assigned to work the shift from 11:00 p.m. to 7:00 a.m. with Joseph Creviston, who had been a firefighter from 1950 to 1971 and had been rehired as a dispatcher in 1978 by Robert Pastrick, the Mayor of East Chicago. Creviston was then the senior dispatcher. From July 1980 until the middle of 1982 Creviston was the Head Dispatcher, the supervisor of all dispatchers. (He was replaced as Head Dispatcher in 1982 by Cyrus Horvath, a former firefighter who became a dispatcher after being injured.) Bohen testified that on the first night she worked with Creviston she took a short nap and awoke at 4:00 a.m. to find Creviston's hands pressed against her crotch. She rebuffed him; he invited her out for a drink; she reported the incident to an assistant chief.

According to Bohen sexual incidents with Creviston "went on and on" as the two worked the graveyard shift until July 1980. Creviston would spread his legs while sitting at the console so that Bohen could not move without touching him. When Creviston was standing, he would rub his pelvis against her rear. He insisted that she not close the door of the bathroom when using it. (A bend in the hall prevents someone at the console from seeing into the bathroom even when the door is open.) Once she had to fight Creviston off with a clipboard while trying to dispatch some equipment to a fire. When Creviston spoke to her, the talk was entirely about sexual matters — in what positions he liked to have sexual relations, how Bohen should comport herself, and so on.

The worst passed with the end of their joint shift. But sex was on the mind of those who visited the lounge in the communications room during the day, and according to Bohen the conversation there was exceptionally vulgar, with conversations about sexual positions and practices dominating all else, even food and the weather. On one occasion, Bohen reports, one of the visitors (Captain Bianci) told Bohen that she needed someone "to drag her into the bushes for a good fuck." This implied threat of rape may have been related to a rumor spread by some senior officers of the department that Bohen was a lesbian —a charge that led to her nervous exhaustion and to a stay of several days in a hospital.

Bohen testified that she repeatedly complained to senior officers of the department about the sexual harassment. Some of the complaints were made to Michael Jancek, then an Acting Deputy Chief, while Bohen and Jancek were dating for a few months in 1980. A memorandum from Bohen to Chief Ard, dated January 6, 1981, complains that Creviston "continues to make advances at me," protests the order to keep the bathroom door open, and reports episodes of rubbing. According to Bohen the chief promised to discipline Creviston but did not. Bohen also testified that from time to time supervisors would ask if anything had been done or otherwise indicate knowledge of the problem. But nothing was done, and the department did not even have a written policy against sexual harassment until after Bohen had been fired. To the contrary, before she took the job, she was warned in an office interview with then-chief Paganelli that the firefighters were "kind of nasty" and would "try anything;" as a result, the chief informed her, she must not socialize with the men, must not enter the apparatus room, and must dress to cover herself from neck to toe. Sexual problems lay ahead, and the department put the entire burden on the female dispatchers.

Bohen's story depicts the communications room at the department as a den of lechery, of men verbalizing their fantasies when she would not yield physically. She reports that the atmosphere made the job unpleasant, that she became withdrawn, that she would take out her frustrations in pointless anger against her two children and her boyfriend, that she all but stopped talking with men on the job and off. She suffered humiliation, anguish, and the costs of two brief stays in the hospital.

The department in turn depicts Bohen as a liar. Almost every person who Bohen charged with sexual harassment — or with knowing about the problems she suffered —took the stand and denied both harassment and knowledge. Creviston denied making advances; two other female dispatchers (Adelle Herrera Granda and Constance Turner) denied that they had been hassled or that Bohen had complained to them; Chief Ard, Deputy Chiefs Dawson, Podkul, and Melyon, and Assistant Chiefs Jancek and Rizzardo all denied knowledge of any harassment. They portrayed Bohen as a chronic complainer (the personnel files of other employees are indeed full of complaints filed against them by Bohen), a malcontent who could not accept criticism and who lashed out...