Volk v. Coler

• Decision Date: 08 July 1986
• Docket Number: No. 81-3366.,81-3366.
• Parties: Vivian VOLK, Plaintiff, v. Gregory COLER, et al., Defendants.
• Court: U.S. District Court — Central District of Illinois

638 F. Supp. 1540

Vivian VOLK, Plaintiff, v. Gregory COLER, et al., Defendants.

No. 81-3366.

United States District Court, C.D. Illinois, Springfield Division.

July 8, 1986.

COPYRIGHT MATERIAL OMITTED

Patricia C. Benassi, Peoria, Ill., for plaintiff.

Barbara J. Collins, Christina M. Saunderson, Asst. Attys. Gen., Springfield, Ill., for defendants.

OPINION AND ORDER

MILLS, District Judge:

Directed verdicts.

As to the State Director, the Regional Director, equal protection and due process claims — ALLOWED.

As to the First Amendment and retaliative claims against the remaining Defendants — DENIED.

Ms. Volk brought this cause of action alleging that six employees of the Department of Children and Family Services (DCFS) acted and conspired to deny her employment and to wrongfully transfer her because of her sex, and because of her opposition to sexual harassment. Suit was filed pursuant to a number of civil rights statutes, including 42 U.S.C. §§ 1983 and 1985 and 42 U.S.C. § 2000e et seq. On May 12, 1986, trial by jury was held simultaneously with those issues arising under Title VII of the Civil Rights Act, which are triable by bench.

Prior to trial, the Court denied Defendants' joint motions for summary judgment on the ground that Plaintiff's allegations, if supported by the evidence, might establish liability under the civil rights statutes. In a subsequent ruling on the parties' cross-motions in limine, however, the Court expressed to counsel its concern about the extent of personal involvement of certain Defendants named in this lawsuit, such involvement being a necessary element of Plaintiff's proof.

At the close of Plaintiff's case, the Court reserved ruling on Defendants' motion for a directed verdict. At the close of all the evidence, however, the Court directed a verdict in favor of two of the six Defendants on the ground that Plaintiff had manifestly failed to carry her burden of persuasion with respect to these Defendants on the crucial elements of their personal involvement in the claimed deprivations of Plaintiff's rights, as well as intent and causation; and further, that no reasonable juror could find them so involved under the governing legal standards in this circuit. In addition, this Court directed a verdict in favor of all Defendants on the claimed violations of Plaintiff's rights in violation of the due process and equal protection clauses of the Fourteenth Amendment (brought under § 1983), and on the alleged conspiracy to deprive Plaintiff of the equal protection of the laws (brought under § 1985). Left for the jury's consideration was the sole issue of whether any of the Defendants retaliated against the Plaintiff in response to her exercise of her First Amendment right to protest what she felt was unlawful discrimination.

This order constitutes a final ruling on Defendants' motion for a directed verdict.

Directed Verdict Standard

The standard for entering a directed verdict and a judgment notwithstanding the jury's verdict is the same. See Sparrow v. Yellow Cab Co., 273 F.2d 1 (7th Cir.1960); Shaw v. Edward Hines Lumber Co., 249 F.2d 434 (7th Cir.1957). In considering such motions, the Court must determine "whether the evidence presented, combined with all reasonable inferences permissably drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed." Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985).

The Court should not make credibility determinations. Brady v. Southern Railroad, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Sonnentheil v. Christian Moerlein Brewing Co., 172 U.S. 401, 408, 19 S.Ct. 233, 235, 43 L.Ed. 492 (1899). Only the non-moving party's evidence and the moving party's uncontradicted and unimpeached evidence should be considered. Panter v. Marshall Field & Co., 646 F.2d 271 (7th Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981), citing Brunner v. Minneapolis, St. Paul & Sault Ste. Marie Railroad, 240 F.2d 608 (7th Cir.1957); see also C.A. Wright and A.R. Miller, Federal Practice and Procedure: Civil § 2524, p. 573 (1971).

Facts

In accordance with these guiding principles, the Court accepts as established the following relevant evidence offered or unchallenged by Plaintiff:

Prior to the incidents giving rise to her discrimination claims, Ms. Volk was employed as a child abuse outreach worker by Covenant Counseling Services, which was housed in the Ottawa field office of the DCFS pursuant to a contract between the two agencies.

Defendant James Tapen was the supervisor of the Ottawa field office and allegedly sexually harassed Plaintiff. He was in charge of hiring someone for the position of Social Worker I with DCFS. Mr. Tapen allegedly made verbal threats to Ms. Volk and turned her down twice for the position and also had her prematurely transferred from the Ottawa field office. Defendant Martin Lohman was Tapen's immediate supervisor. Defendant Jessie Hairston was the regional administrator of the Peoria region and supervised both Tapen and Lohman until March 17, 1980, when she became ill. Defendant Tom Ward took over her duties in her absence until she returned in May. After Hairston's return, she and Ward shared the duties of regional administrator until Hairston resigned in August or September. Defendant Jesse Viers was the labor relations specialist in the Peoria region assigned to handle Plaintiff's grievances. Defendant Gregory Coler was the Director of the DCFS.

According to Ms. Volk, Tapen began sexually harassing her almost immediately after she began working in the Ottawa field office in November, 1978. After Tapen learned that Ms. Volk would not respond to his sexual advances, Tapen allegedly became critical and disparaging of her work and told her that her co-workers were complaining about her and said she should be "nicer" to everyone. When Plaintiff asked her co-workers if they had any complaints, they denied it. Tapen then admitted that the criticisms were "just my own personal feelings." Tapen also began making unfounded criticisms of her work and took various steps to prevent Plaintiff from effectively performing her duties. For example, when Plaintiff used what she felt were acknowledged social work practices to work with abused women, Tapen accused Plaintiff of teaching the abused women more of her "women's lib bullshit." Tapen repeatedly made disparaging remarks about women, implying that their problems would be solved by having sex.

In December 1979, a Social Worker I position became open in the Ottawa field office. No state employees bid on the job during the applicable time period. Plaintiff was the only bidder and was on the "A" list.

On January 2 and 3, 1980, Plaintiff was interviewed by Tapen for the position. Plaintiff was the only candidate for the position to receive an A on the competitive examination and was a well-qualified applicant who had job experience directly related to the job.

During the interview, Tapen initially asked Plaintiff a series of job-related questions which Plaintiff answered to Tapen's satisfaction. Tapen also told Plaintiff she was a good and a hard worker. Defendant Tapen informed Plaintiff that he was considering hiring a state employee trainee employed in the Princeton DCFS office but was checking into the legality of so doing. When Plaintiff asked why he did not want to hire her, he told her that he had concerns about what she did after hours, and he complained that she had not attended a co-worker's Christmas party and that her roommate failed to invite various office members to a gathering in their home. He also told her she should go back to her husband and asked how her children felt about her divorce. When Plaintiff protested saying he was using things in her personal life against her, he responded, "Yes, that's true."

Mr. Tapen, on the other hand, denies that he based his decision on impermissible considerations. Rather, he states that DCFS policy provides that if less than three candidates are available for selection, then management is not required to select from two or less candidates. He therefore claims that he was merely attempting to insure that he had available a well-qualified pool of applicants to choose from.

After the interview, Tapen rejected Plaintiff for the Social Worker I position and selected the trainee. Plaintiff also testified that Tapen consulted with Defendant Hairston before hiring the trainee, who approved his choice. A few days later Mary Wegrzyn, a co-worker of Plaintiff's, advised Hairston of Tapen's illegal motivations and actions in refusing to select Plaintiff. Notwithstanding, Hairston allegedly continued to approve Tapen's actions.

On January 9, 1980, Plaintiff filed a written grievance in which she protested Tapen's refusal to hire her claiming that his actions were discriminatory and violated the Department of Personnel Rules in numerous ways. Defendant Lohman, Tapen's direct supervisor, was in the office with Tapen when Plaintiff presented her first grievance to Tapen.

Tapen denied Plaintiff's grievance which was then submitted to the regional administrator, Jessie Hairston. Hairston, Viers and Lohman were responsible for reviewing and correcting Tapen's actions at the regional level and had numerous consultations about the action to take with respect to Plaintiff and Tapen's refusal to hire her.

On January 25, 1980, Viers sent a copy of Plaintiff's grievance to the DCFS labor relations office in Springfield, Illinois. John Henderson was the labor relations contact person in Director Coler's office and worked pursuant to his direction and authority. Henderson reviewed the grievance and made notes in the margin noting that with respect to Tapen's questioning and refusal to hire Plaintiff because of non-merit reason, these were "hard to defend" and made other criticisms of Tapen's actions.

On January 28, 1980, Viers met...