Everson v. City of Madison, 08-cv-618-bbc.

Decision Date10 December 2009
Docket NumberNo. 08-cv-618-bbc.,08-cv-618-bbc.
Citation672 F.Supp.2d 881
PartiesMonica K. EVERSON, Plaintiff, v. CITY OF MADISON and Robert D'Angelo, in his individual capacity,<SMALL><SUP>1</SUP></SMALL> Defendants.
CourtU.S. District Court — Western District of Wisconsin

Linda L. Harfst, Theresa R. Gabriel, Cullen Weston Pines & Bach LLP, Madison, WI, for Plaintiff.

Ann Emmerich, Sheila M. Sullivan, Bell, Gierhart & Moore, S.C., Madison, WI, Raymond Pollen, Mary E. Nelson, Crivello, Carlson & Mentkowski, S.C., Milwaukee, WI, for Defendants.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

Plaintiff Monica Everson is suing defendants City of Madison and Robert D'Angelo for alleged sexual harassment by D'Angelo that occurred between 1991 and 2005 while she was working under his supervision at the Madison Civic Center and, later, the Overture Center for the Arts in Madison, Wisconsin. She brings her claims under Title VII of the Civil Rights Act (against the city) and 42 U.S.C. § 1983 and the equal protection clause (against both defendants). Both defendants have filed motions for summary judgment, which are now ripe for review.

The city's motion will be granted with respect to plaintiff's claim that the city violated her right to equal protection of the laws because plaintiff failed to develop any argument that the city had a policy of promoting or permitting sexual harassment, which is the standard for municipal liability under § 1983. Phelan v. Cook County, 463 F.3d 773, 788-89 (7th Cir. 2006). See also Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007) (failure to oppose argument operates as waiver). In her brief, plaintiff seems to assume that the standard for municipal liability is the same under Title VII and § 1983, but that is not correct. Although "the standard of proof as to what constitutes sexual harassment under § 1983 is essentially the same as that under Title VII," Murray v. Chicago Transit Authority, 252 F.3d 880, 887 (7th Cir.2001) (emphasis added), the basis for employer liability is quite different. Under Title VII an employer may be held liable using traditional agency principles, but under § 1983 the plaintiff must show that the employer's own unconstitutional actions caused the plaintiff's harm. Phelan, 463 F.3d at 782-86, 788-90 (analyzing two claims separately and using different standards).

Defendants' motions for summary judgment will be denied in all other respects. Their primary argument is that plaintiff's claim is untimely, but they have failed to properly apply National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), in which the Supreme Court held that employees subjected to sexual harassment may rely on older incidents to establish liability so long as the older incidents are related to at least one incident that occurred within the limitations period. Because plaintiff alleges that defendant D'Angelo continued to subject her to harassment through 2005 and it is undisputed that the incidents in 2005 fall within the statute of limitations, I conclude that the older incidents may be considered as well.

Also before the court is plaintiff's motion to "strike" several of the city's proposed findings of fact. That motion will be denied as moot because it was not necessary to consider any of these facts in order to resolve the summary judgment motions.

OPINION

To prevail on a claim for sexual harassment under Title VII or § 1983, a plaintiff must prove that she was subjected to unwelcome conduct because of her sex and that the harassment was sufficiently severe or pervasive as to alter the conditions of her employment. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir.2007); Huff v. Sheahan, 493 F.3d 893, 903-04 (7th Cir.2007). Neither defendant denies that plaintiff has adduced sufficient evidence to prove that D'Angelo's treatment of her in the 1990s created a "hostile work environment," the term courts use to describe harassment that violates federal law. E.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). This is a wise concession. It is unnecessary to recount all the acts that plaintiff alleges because it is clear that even a fraction of them would be sufficient to give rise to a federal claim, but I will provide a sampling of the alleged harassment:

• soon after plaintiff began working for the city, defendant D'Angelo followed plaintiff into an elevator, pressed himself against her, pushed her to the wall and grabbed the sides of her breasts; D'Angelo did the same thing on many instances when he was alone in the elevator with plaintiff;

• on many occasions, D'Angelo would take plaintiff's hand and place it on his genitals over his clothes, trying to get plaintiff to massage his crotch;

• D'Angelo unzipped his pants and held his penis in front of her, saying "What do you think? Don't you like it?";

• on multiple occasions, when plaintiff asked D'Angelo to sign a paper, he would put the paper down the front of his pants and say, "Come get it";

• D'Angelo made comments to plaintiff such as, "I know you want to fuck me," "[I]f you fuck me, you'd never able to be with another man your whole life, I'm so good";

• D'Angelo told plaintiff that he would like to "do her with a banana" and that she would have to give him "10 blow jobs" if she wanted a purple geode that was on his desk;

• D'Angelo called plaintiff a "cunt," a "bitch" and a "dumb blonde";

• D'Angelo asked plaintiff to participate in a "threesome" with another woman.

Overall, plaintiff estimates that defendant D'Angelo groped, fondled or otherwise inappropriately touched her more than 500 times over the course of her employment.

The gist of the city's argument is that plaintiff missed the boat on suing for any harassment that occurred because the statute of limitations has run on the vast majority of the alleged harassment and the incidents that occurred within the limitations period are not sufficiently severe or pervasive to constitute sex discrimination under the Constitution or Title VII. (Defendant D'Angelo argues in his motion that the court should not consider incidents before the limitations period, but he does not address the question whether the more recent incidents are sufficient to state a claim on their own.) Plaintiff filed a charge with the Equal Employment Opportunities Commission on October 25, 2005; she filed this lawsuit on October 16, 2008. Ordinarily, a plaintiff may not maintain a lawsuit under Title VII for any discriminatory acts that occurred more than 300 days before she filed the charge. 42 U.S.C. § 2000e-5(e)(1); in Wisconsin, claims under § 1983 must be brought within six years of the date she has notice of her injury. Malone v. Corrections Corp. of America, 553 F.3d 540, 542 (7th Cir. 2009).

According to the city, only two incidents of alleged harassment occurred less than six years before October 16, 2008 or less than 300 days before October 25, 2005. First, plaintiff alleges that, in April 2005, defendant D'Angelo asked whether a zipper on her shirt "zipped all the way down." He then reached over and zipped her shirt down to the point that it exposed her brassiere until plaintiff stopped him. Second, also in 2005, plaintiff alleges that D'Angelo attempted to grab her crotch, coming within one inch of it before he stopped and went back to his office.

The city may be correct that these two incidents are not sufficient to state a claim for sex discrimination by themselves. Although one might think that any nonconsensual sexual touching could give rise to a claim, the Court of Appeals for the Seventh Circuit has declined to adopt a bright line rule, instead looking at the facts of each case. The court has said that "touching . . . increases the severity of the situation," Worth v. Tyer, 276 F.3d 249, 268 (7th Cir.2001), and that "unwanted physical contact falls on the more severe side," Magyar v. Saint Joseph Regional Medical Center, 544 F.3d 766, 771-72 (7th Cir. 2008), but it has also said that "[t]here are some forms of physical contact which, although unwelcome and uncomfortable for the person touched . . . typically will not be severe enough to be actionable in and of themselves." Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir.2000).

A review of the cases shows that the only thing that may be said with certainty is that a fine line exists between touching that is sufficiently severe and touching that does not constitute sex discrimination as a matter of law. Compare Patton v. Keystone RV Co., 455 F.3d 812, 816-17 (7th Cir.2006) (allegation that harasser's "hand was under [plaintiff's] shorts, on her inner thigh, and touching her underwear" was sufficiently severe); Worth, 276 F.3d at 268 (touching of plaintiff's "breast near the nipple for several seconds is severe enough"); Hostetler, 218 F.3d at 807-09 (forced kissing and attempt to remove plaintiff's bra sufficiently severe); Doe v. City of Belleville, 119 F.3d 563, 582 (7th Cir.1997) (being grabbed by testicles is sufficiently severe), with McPherson v. City of Waukegan, 379 F.3d 430, 434, 439 (7th Cir.2004) (pulling back plaintiff's shirt once to see type of bra she was wearing insufficient); Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463-64 (7th Cir.2002) (two instances of back rubbing not sufficiently severe); Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir.1998) ("four isolated incidents in which a co-worker briefly touched her arm, fingers, or buttocks" not sufficiently severe or pervasive); Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 706-08 (7th Cir.1995) (one instance where supervisor rubbed foot against plaintiff's leg and another where he grabbed plaintiff's buttocks not sufficiently severe); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir.1993) (assuming that two attempts by a supervisor to kiss plaintiff were insufficient); Saxton v. AT & T, 10 F.3d 526, 528 (7th Cir.1993) (rubbing hand...

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