Valentine v. City of Chicago
| Citation | 452 F.3d 670 |
| Decision Date | 27 June 2006 |
| Docket Number | No. 05-2688.,05-2688. |
| Parties | Donna VALENTINE, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, John Tominello, Mike DiTusa, and Joseph Senese, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Edward T. Stein (argued), Chicago, IL, for Plaintiff-Appellant.
Ruth F. Masters (argued), Office of the Corporation Counsel, Appeals Division, Donald J. Angelini, Jr. (argued), Angelini & Angelini, Chicago, IL, for Defendants-Appellees.
Before FLAUM, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.
Plaintiff-Appellant Donna Valentine ("Plaintiff" or "Valentine") worked in the City of Chicago's Department of Transportation ("CDOT") as a motor truck driver. She alleges that she was sexually harassed by a co-worker, John Tominello and that her supervisors took no action in response to her complaints. Valentine filed suit against the City, Tominello, and her two alleged supervisors, Mike DiTusa and Joseph Senese. Valentine's complaint alleged a Title VII violation, an Equal Protection claim, and various state law claims. The district court granted summary judgment in favor of Defendants and Valentine appeals. For the following reasons, we affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.
Valentine worked in the Chicago Department of Transportation as a motor truck driver. From 1998 through November 2002, she was assigned to the department's Bosworth Yard location. During the time relevant to this appeal, Defendant Senese held the title of Acting General Foreman of CDOT.
Defendant Mike DiTusa was the Lot Supervisor at Bosworth Yard. His direct supervisor was Senese. DiTusa oversaw the 45 to 50 drivers assigned to his lot and was responsible for making sure trucks were serviced, starting trucks in the morning, assigning trucks to drivers, keeping records of when drivers signed in and out for work, addressing workplace disputes, and reporting problems to his superiors. DiTusa parked his car in the spot marked reserved for the supervisor and had his own office in the trailer at Bosworth Yard. Valentine alleges that most drivers would go to DiTusa if they had problems in the yard. She also alleges that DiTusa had the power to transfer drivers to different yards and had exercised this power in the past.
Defendant Tominello was a driver at the Bosworth Yard location, beginning in March 2002. According to Valentine, Tominello had a history of sexually harassing female co-workers. Plaintiff alleges that Tominello was transferred to Bosworth Yard after a woman at his previous assignment, Elizabeth Farrell, complained that he was sexually harassing her. Farrell alleged that she complained to Senese about Tominello, but did not receive a satisfactory response. Senese did not make a supervisory referral to the City's Sexual Harassment Office ("SHO") about Farrell's complaints, and SHO recommended that Senese be counseled for his failing to do so. Another woman at Tominello's previous assignment, Colleen Julian, filed a statement in Farrell's case stating that Tominello also sexually harassed her. Julian asserted that Senese was aware of the harassment and that he told Tominello to stop. Senese eventually transferred Tominello to the Bosworth Yard location.
Valentine alleges that Tominello began harassing her as soon as he began working at Bosworth Yard. Specifically, according to Valentine, Tominello told her, "Your ass looks really great in those jeans you got on." She also maintains he told her she had a "nice ass," that it "would look good on his face," and that T-shirts she wore made her "tits look really nice" and bigger than normal. Additionally, Valentine alleges that in June or July 2002, Tominello told her that he was going to Chinatown to get his "pipes cleaned," while making a stroking motion with his hand. He also allegedly asked Valentine on approximately twenty occasions to leave her fiance and go out with him, because he could show her a better time, and asked her between thirty and forty times to go out to dinner with him. Valentine further alleges that Tominello rubbed his crotch in front of her on nearly every work day from March 2002 to September 2002. Additionally, Valentine alleges that on at least six occasions Tominello caressed her arm or shoulder.
Valentine maintains that she told Tominello two to three times a week "that she did not care for him, and to just pretend that she didn't exist, to stay away from her, and to leave her alone." According to Valentine, she complained to DiTusa about Tominello's harassment on approximately ten occasions. After each complaint, DiTusa told Valentine that he would address the problem. DiTusa talked to Tominello on ten occasions and told him to leave Valentine alone. Nonetheless, the harassment continued. DiTusa did not refer Valentine's complaint to SHO. The City's policy on sexual harassment provides that an employee may bring complaints of sexual harassment to a supervisor and a supervisor who receives such a complaint is required to refer it to SHO.
Valentine also alleges that DiTusa was present on one occasion when Tominello harassed her. According to Plaintiff, on September 25, 2002, she went into the trailer where DiTusa's office and a break room for the drivers were located. Valentine states that she entered DiTusa's office and sat near his desk. Another worker had brought a plate of white powdered crescent-shaped cookies to work that morning. The plate was sitting on DiTusa's desk. Valentine alleges that Tominello took one of the cookies, walked toward her, and said "let's see if we can get some sugar on Donna." She states that "Tominello held the cookie by the edge and made a jerking motion with his hand as if he were masturbating," and powdered sugar landed on Valentine's lap. Valentine asserts that she became angry and yelled at Tominello, and Tominello threatened to file a violence in the workplace complaint against her. After the incident, she left the trailer, got in her truck, and left the yard to begin work for the day.
Valentine alleges that she returned to the yard around 2:30 that afternoon and "saw wet chewed cookie spit on the driver's side window of her car." Valentine's car was parked in a fenced area that is secured by watchmen 24 hours a day. Valentine states that she went to DiTusa's office and complained about the vandalism. She said she thought Tominello was responsible for it. DiTusa allegedly told Valentine that unless she could prove it, there was nothing he could do. Valentine then returned to her car, where she says she "found a plastic penis under the windshield wiper."
Later the same day, Valentine called Senese to complain about Tominello's harassment. Senese transferred Tominello to another job site the next day, September 26, 2002. Senese reported the harassment to SHO. Valentine told DiTusa that she had complained to Senese. DiTusa allegedly responded, "now you have done it, now you are going to bring heat on all of us, you are going to make trouble where there doesn't need to be trouble."
On October 25, 2002, Valentine was in the trailer with DiTusa and allegedly overheard him talking on the phone to Senese about the September 25 "cookie incident." According to Valentine,
DiTusa was telling Senese the name of the drivers who witnessed the incident with the powdered cookie on September 25, 2002. DiTusa told Senese, "Alright, I'll come pick up the papers for them." DiTusa then hung up the phone and abruptly stood up, yelling "Mother fucker, I don't need this shit," while throwing his desk chair into the wall. DiTusa walked past Plaintiff, paced around the common area of the trailer, swearing loudly. He returned to the office and glared at Plaintiff. Plaintiff feared for her safety.
Valentine maintains that after she filed her complaint at SHO, she noticed that her male co-workers would not speak to her and would leave the trailer when she entered it. Someone allegedly left a message on her cell phone saying, "Bitch, you better not do it." Also, Anthony Moreno, the Supervisor of Laborers, allegedly called Valentine a "rat." On two occasions at the end of October, Valentine met with Jay Sparber, a counselor for the City's Employee Assistance Project. Valentine maintains that she spoke with Sparber because of the fear and anxiety Tominello and her co-workers had caused her.
Valentine subsequently requested a transfer from the Bosworth Yard, allegedly because she felt it was a hostile work environment. She was transferred to the O'Hare yard in November 2002. She later requested to be moved out of the Department of Transportation altogether. In April 2003, she was transferred to the City's Water Department.
On April 30, 2003, Valentine filed suit against the City of Chicago, Tominello, DiTusa, and Senese, alleging sexual harassment and hostile work environment claims under Title VII (against the City only), sexual harassment and retaliation in violation of her Equal Protection and First Amendment rights (against the City, Tominello, DiTusa, and Senese), and several state law tort claims.
Valentine retained Dr. Louise Fitzgerald, a professor at the University of Illinois and an expert in sexual harassment. Fitzgerald developed a report critiquing the City's sexual harassment policy. According to the report, the City's sexual harassment policy was not displayed or easily accessible to employees and employees did not have easy access to the names and telephone numbers of sources to contact if they experienced harassment. The report concluded that the City's sexual harassment policy "was inadequate, ambiguous, and inadequately publicized." Fitzgerald also opined that the City's response to previous sexual harassment complaints made...
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