Garrison v. Burke

• Decision Date: 14 January 1999
• Docket Number: No. 97-1499,97-1499
• Citation: 165 F.3d 565,1999 WL 13515
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 42, 75 Empl. Prac. Dec. P 45,744 Heather GARRISON, Plaintiff-Appellant, v. Lieutenant Tom BURKE, Individually and in his official capacity as Lieutenant of the Rockford Fire Department, City of Rockford, a municipal corporation, William Baylor, Frank Genestra, Ronald Graw, Edward Archer, Steve Leighty, and Lyndell Pond, Individually and in their official capacity as officials of the Rockford Fire Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 565

165 F.3d 565

79 Fair Empl.Prac.Cas. (BNA) 42, 75 Empl.

Prac. Dec. P 45,744

Heather GARRISON, Plaintiff-Appellant, v. Lieutenant Tom BURKE, Individually and in his official capacity as Lieutenant of the Rockford Fire Department, City of Rockford, a municipal corporation, William Baylor, Frank Genestra, Ronald Graw, Edward Archer, Steve Leighty, and Lyndell Pond, Individually and in their official capacity as officials of the Rockford Fire Department, Defendants-Appellees.

No. 97-1499.

United States Court of Appeals Seventh Circuit.

Argued Nov. 7, 1997.

Decided Jan. 14, 1999.

Edward F. Diedrich (argued), DeKalb, IL, for Plaintiff-Appellant.

Daniel J. Cain, Sreenan & Cain, Kerry F. Partridge (argued), City of Rockford, David A. Caulk, Rockford, IL, for Defendant-Appellee.

Ronald N. Schultz, Douglas P. Scott, Kerry F. Partridge (argued), City of Rockford, Daniel J. McGrail, Rockford, IL, for Defendants-Appellees.

Before COFFEY, FLAUM and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

The plaintiff-appellant Heather Garrison, a firefighter with the City of Rockford, Illinois, Fire Department, filed a sexual harassment suit in the Northern District of Illinois, naming as defendants the City of Rockford, the officials of the Rockford Fire Department, and a lieutenant in the department, Tom Burke. On January 27, 1997, the trial court granted summary judgment to the defendants, ruling that much of the allegedly harassing conduct occurred outside the statute of limitations, and further holding that the plaintiff's allegations not barred by the statute of limitations failed to state a claim. Garrison appeals the trial court's ruling. We affirm.

I. BACKGROUND

Procedural History.

On May 15, 1991 Garrison filed her complaint, contending that she was harassed by Lieutenant Burke on nine occasions over a period of some four and a half years, from October 1986 to February 1991. Furthermore, the plaintiff alleges that the City of Rockford and the defendant officials of the Rockford Fire Department ("the Fire Officials") failed to protect her from this sexual harassment. She cited federal claims relating to equal protection, privacy, and due process, as well as state claims relating to intentional infliction of emotional distress, assault and battery, invasion of privacy, breach of implied contract, and violations of the Illinois State Constitution. See I LL. C ONST. OF 1970, art. 1, §§ 2 and 17; 68 ILCS § 1-101 et seq. The City and the Fire Officials jointly moved for a more definite statement pursuant to Fed.R.Civ.P. 12(e), seeking greater clarification as to exactly which defendant was accused of violating which law, and the plaintiff voluntarily filed an amended complaint. After the City and Fire Officials renewed their motion for a more definite statement, the plaintiff filed a second amended complaint on August 2, 1991. In each of the complaints Burke and the named Fire Officials were sued in both their individual and their official capacities. The trial judge, in orders dated February 8, 1993, and January 5, 1994, dismissed all the individual capacity claims. On December 6, 1996, the Fire Officials and the City of Rockford jointly moved the trial court to grant summary judgment, arguing that the statute of limitations barred much of the sexually harassing conduct alleged by the plaintiff and that, furthermore, the evidence was insufficient to sustain any of the plaintiff's claims. On December 31, 1996 Burke filed his own motion for summary judgment, relying on the statute of limitations argument that his codefendants had presented, and adopting the Local Rule 12(M) Statement of Uncontested Facts the City had filed. The plaintiff filed a single response to both summary judgment motions, but her response was deficient in that the Statement of Uncontested Facts she submitted along with her response violated the local rules by failing to make any citations to the record. ¹ The City filed, and the court granted, a motion to strike her Rule 12(N) statement. As a result, the judge, when deciding the defendants' summary judgment motions, considered only the defendants' jointly adopted Rule 12(M) Statement of Facts. See Flaherty v. Gas Research Inst., 31 F.3d 451, 453 (7th Cir.1994) (where the nonmoving party fails to comply with Rule 12(N) by making "specific references" to the record, the court may deem the facts contained in the moving party's Rule 12(M) statement to be admitted). ²

According to the defendants' Rule 12(M) Statement, there were nine separate occasions, between October 1986 and February 1991, where Garrison allegedly had unwanted contact with Burke. Garrison concedes that the statute of limitations is two years, see 735 ILCS 5/13-202, and that many of the incidents occurred more than two years before she filed her complaint on May 15, 1991, but she argues that the series of events constituted a continuing violation, a contention which we examine after delineating the nine alleged encounters.

1. October 31, 1986. Garrison was assigned to City of Rockford Fire Station No. 7 with Lieutenant Burke, and on October 31, 1986 Burke requested that she accompany him to the basement of the station to add salt to the water softener. Garrison claims that, while she was alone with Burke, he attacked her, ripped open her work shirt, placed his hands on her breasts with force causing her pain, and kissed her on the lips. Garrison states that she resisted by digging her fingernails into his face, and he backed away. She immediately ran upstairs into the women's bathroom, and shortly thereafter, exited and walked into the hallway, only to encounter Burke again. At this time Burke threw open the door from the basement and again forcibly grabbed her breasts and kissed her. Garrison pushed him away and ran to a "watch desk," where she called Fire Captain Ron Graw, and informed him that she had been attacked by Lieutenant Burke. Graw reported the assault to the Chief of the Rockford Fire Department, William Baylor, and subsequently advised Garrison that Baylor had decided to transfer her. The transfer was not to take place immediately but was to take effect January 1, 1987. Garrison did not object to the delay because she worried that an immediate transfer might attract the curiosity of her fellow fire fighters, and (as she stated in her deposition) she did not want anybody to know what had happened except her chain of command. Garrison did not notify the police of the assault, and never sought disciplinary action against Burke until 1991, after discussing the attack with a union steward.

2 and 3. Two days between November 1, 1986 and December 31, 1986 (unspecified). Garrison alleged that on two separate occasions in 1986, after the initial assault and before her transfer, Burke inappropriately walked into the non-officers' dormitory sleeping area, where Garrison and at least one other fire fighter ³ were sleeping. Burke did not say anything but essentially walked in, turned around, and walked out. Garrison at no time reported this unusual conduct on the part of Burke to her superiors.

4. January 30, 1987. Garrison further alleged that, on January 30, 1987, at approximately 8 a.m., while she was off duty and at home, she looked out of her window and observed Burke "walking around with his hands on my car." She telephoned Captain Graw and told him what had happened and asked him to tell Burke to leave her alone.

5. Unspecified day in 1987. Garrison alleged that, while she was on an emergency call assignment, she knelt down to pick up a stretcher, and Burke came up and stood directly behind her in such a way that, when she stood up, her back struck Burke's chest. Neither Burke nor Garrison said a word to the other at this time, and Garrison did not report Burke's conduct to anyone.

6. May 15, 1989. During a break at a fire scene, Burke said to Garrison "I want to take you out for coffee." Then, stating, "You have a bug on your cheek," he reached out and brushed her cheek. Shortly thereafter, according to Garrison, Burke "put his hand on the front part of my thigh, came up to the crotch area, came up my stomach, over my breasts, across my shoulder, and then he just walked away without saying a word." Garrison asked two of her fellow fire fighters (one of whom witnessed the improper touching) to speak with her supervisor, Chief Frank Genestra, to request that Burke be "confronted" regarding his conduct. Genestra did confront Burke, and advised him that if he did anything else to Garrison, he would be terminated from the department. Garrison did not pursue the matter further.

7. Unspecified Day in February 1990. ⁴ Garrison was assigned for one day in February of 1990 to Station No. 7 due to a manpower shortage. She knew that Burke was scheduled to be working the following shift at Station No. 7, but she did not request that she be relieved of this assignment. Burke reported for duty before Garrison finished her shift, but the two were never in the same room.

8. April 28 or 29, 1990. When Garrison reported for work on the morning of April 28 or 29, she was directed to go to the training academy to assist in the testing of new recruits' physical agility. She did not know that Burke was also assigned to the training academy that day. As Garrison walked into the building, she allegedly saw Burke. The two did not make eye contact, nor did they speak. Later that day she again saw Burke, standing next to Chiefs Genestra and Archer. She turned around and walked away so as to avoid Burke. Garrison never told any supervisors that she was upset about seeing Burke on this occasion.

9. Unspecified Day in February 1991. Garrison was again assigned to substitute for the day at Station No. 7. Even though she knew that Burke was assigned to work the shift after hers, she reported to the station without informing her supervisors that she was worried about coming into contact with Burke. However, after arriving at...