Doe v. City of Chicago

• Decision Date: 27 February 2004
• Docket Number: No. 03-2221.,03-2221.
• Citation: 360 F.3d 667
• Parties: Jane DOE, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee, and Charles WHITE, Defendant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 667

360 F.3d 667

Jane DOE, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee, and Charles WHITE, Defendant.

No. 03-2221.

United States Court of Appeals, Seventh Circuit.

Argued December 1, 2003.

Decided February 27, 2004.

Rehearing Denied March 23, 2004.

Janine L. Hoft (argued), People's Law Office, Chicago, IL, for Plaintiff-Appellant.

Mara S. Georges, Jane E. Notz (argued), Office of the Corporation Counsel, App. Div., Chicago, IL, for Defendant-Appellee.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, who is not named "Jane Doe," brought suit against a Chicago police officer, Charles White, charging him with both federal civil rights violations (42 U.S.C. § 1983) and tortious misconduct under Illinois law. She also named as a defendant the City of Chicago, contending that it is liable for White's misconduct under the doctrine of respondeat superior, as codified in 745 ILCS 10/9-102; see Yang v. City of Chicago, 137 F.3d 522, 526-27 (7th Cir.1998); Kolar v. County of Sangamon, 756 F.2d 564, 566-67 (7th Cir. 1985). (Her complaint contained another claim against the City, but she later abandoned it.) The City moved for summary judgment with respect to the claim against it, on the ground that White's tortious behavior was outside the scope of his employment. The district judge granted the motion and entered a final judgment in favor of the City under Fed.R.Civ.P. 54(b), which permits the judge to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties," though "only upon an express determination that there is no just reason for delay." The judge's action enabled Doe to appeal immediately even though her claims against White have yet to be resolved in the district court, where trial has been stayed to await the outcome of the appeal.

As an aside, we express our concern about the plaintiff's litigating under a pseudonym. E.g., Coe v. County of Cook, 162 F.3d 491, 498 (7th Cir.1998); Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997); K.F.P. v. Dane County, 110 F.3d 516, 519 (7th Cir.1997); United States v. Microsoft Corp., 56 F.3d 1448, 1463-64 (D.C.Cir. 1995) (per curiam). Judicial proceedings are supposed to be open, as these cases make clear, in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity. Not that concealment of a party's name is always improper. The presumption that parties' identities are public information, and the possible prejudice to the opposing party from concealment, can be rebutted by showing that the harm to the plaintiff (normally the plaintiff is the party whose identity is concealed, except in cases in which the defendant's identity is unknown to the plaintiff when the suit is brought, as in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)) exceeds the likely harm from concealment. Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir.2000); M.M. v. Zavaras, 139 F.3d 798, 802-03 (10th Cir.1998); James v. Jacobson, 6 F.3d 233, 238-43 (4th Cir. 1993); Doe v. Frank, 951 F.2d 320 (11th Cir.1992); Doe v. Stegall, 653 F.2d 180, 184-86 (5th Cir.1981).

Although the plaintiff in this case is charging sexual harassment, sexual harassment cases are not brought anonymously even when the facts are gamier than they are here. The plaintiff is not a minor, a rape or torture victim (cf. Doe v. Wright, 82 F.3d 265, 267 (8th Cir.1996), where the plaintiff had been forced by the defendant police officer to undress and perform "various sex acts in his presence"), a closeted homosexual, or — so far as appears — a likely target of retaliation by people who would learn her identity only from a judicial opinion or other court filing. The qualification in "so far as appears" is important, however. The danger of retaliation is often a compelling ground for allowing a party to litigate anonymously, e.g., Does I Thru XXIII v. Advanced Textile Corp., supra, 214 F.3d at 1068-69; United States v. Doe, 655 F.2d 920, 922 n. 1 (9th Cir.1981); Doe v. Stegall, supra, 653 F.2d at 186; Gomez v. Buckeye Sugars, 60 F.R.D. 106 (N.D.Ohio 1973), and could be a factor in a case such as this in which the plaintiff is charging a police officer with sexual misconduct that he denies. But there is no indication that this is the basis on which the plaintiff is seeking to litigate anonymously. Indeed, there is no indication of any basis for her proceeding thus. She merely filed the complaint anonymously, there was no objection, and the judge conducted no inquiry into the propriety of anonymity. The judge's failure to make an independent determination of the appropriateness of the plaintiff's concealing her name was error because, as we have explained, "the use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." Doe v. Blue Cross & Blue Shield United of Wisconsin, supra, 112 F.3d at 872.

Given the procedural posture, we construe the facts as favorably to Doe as the case permits. She was in an auto accident and sought the help of a police officer, who happened to be the defendant Charles White. He was attracted to her, and asked her to have a drink with him, but she refused. He started calling her at her home at night, pestering her for a date. She refused steadily, and wouldn't give him her address. But one day while he was on duty and in his police car, he saw her driving and ordered her to pull over. He told her she'd done nothing wrong and he wasn't going to give her a ticket, but he nevertheless insisted on examining her driver's license — so he could learn her address. One morning a couple of weeks later he broke into her house while she was sleeping. She woke up and encountered him in the kitchen. He grabbed her, rubbed against her, and even exposed his penis to her. She ordered him to leave the house, threatening to call 911 if he didn't leave. He replied that he "is 911," and reminded her that he worked in her district. After another break-in by White and more harassing phone calls, Doe complained to the police department's Office of Professional Standards. Following a hearing at which White denied Doe's charges, claiming that the two had had a voluntary relationship that had gone bad, the police review board found him guilty of telephone harassment and trespass and ordered him suspended for ten months.

It is doubtful that if Doe obtains a substantial money judgment against White he will have the wherewithal to pay it. But if in harassing Doe he was acting within the scope of his employment by the City as a police officer, then under state law, as we noted at the outset, the City must pay the judgment. The general rule, on which the district judge relied in granting the City's motion for summary judgment, is that an employer is liable for an intentional tort committed by its employee only if the tort was in furtherance of his employment, that is, only if the employee's motive, or at least a motive, in committing the tort was to serve his employer. E.g., Wright v. City of Danville, 174 Ill.2d 391, 221 Ill.Dec. 203, 675 N.E.2d 110, 117-18 (Ill.1996); Rice v. Nova Biomedical Corp., 38 F.3d 909, 912-13 (7th Cir.1994) (Illinois law); Illinois Founders Ins. Co. v. Smith, 231 Ill.App.3d 269, 172 Ill.Dec. 780, 596 N.E.2d 59, 64 (1992); Gregor v. Kleiser, 111 Ill.App.3d 333, 67 Ill.Dec. 38, 443 N.E.2d 1162, 1166 (1982); Sunseri v. Puccia, 97 Ill.App.3d 488, 52 Ill.Dec. 716, 422 N.E.2d 925, 930 (1981); W. Page Keeton et al., Prosser and Keeton on the Law of Torts 505 (5th ed.1984). Only Wright involves the indemnity statute, 745 ILCS 10/9-102, but the other cases we have cited (and many others we could cite), plus the Restatement (Second) of Agency § 228(2) (1958), also hold that unless in furtherance of the business of the tortfeasor's employer, an intentional tort is not within the scope of his employment; and that would bring it outside the indemnity statute as well.

So if White had pulled over Doe both to ticket her for a traffic violation and to get her address for entirely personal reasons, that part at least of the harassment of which she complains (the smallest part) would be within the scope of his employment. But Doe insists that even if White's motives were entirely personal throughout, his torts were within the scope of his employment because he is a police officer who used (that is, misused) his authority to effectuate his personal design.

The proposition that scope of employment should be interpreted more broadly when the employee is a police officer has yet to be considered by the Supreme Court of Illinois, but it has a footing in other jurisdictions and may well be the wave of the future. Mary M. v. City of Los Angeles, 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341, 1347-52 (1991); West v. Waymire, 114 F.3d 646, 649 (7th Cir.1997); St. John v. United States, 240 F.3d 671, 676-78 (8th Cir.2001); Primeaux v. United States, 102 F.3d 1458 (8th Cir.1996); Red Elk v. United States, 62 F.3d 1102, 1104-07 (8th Cir.1995); Ingram v. City of Indianapolis, 759 N.E.2d 1144, 1146-48 (Ind. App.2001); Applewhite v. City of Baton Rouge, 380 So.2d 119, 121-22 (La.App. 1979); Carney v. White, 843 F.Supp. 462, 479-80 (E.D.Wis.1994), affirmed under the name Carney v. Village of Darien, 60 F.3d 1273 (7th Cir.1995); cf. Stropes v. Heritage House Childrens Center of Shelbyville, Inc., 547 N.E.2d 244, 245, 249-50 (Ind.1989); Gutierrez v. Thorne, 13 Conn. App. 493, 537 A.2d 527 (1988); see generally 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 7:12 (rev. ed. 1994 & Supp.2001); Rochelle Rubin Weber, Note, "`Scope of Employment'...