Volk v. Coler
| Decision Date | 02 May 1988 |
| Docket Number | No. 86-2518,86-2518 |
| Parties | 46 Fair Empl.Prac.Cas. 1287, 46 Empl. Prac. Dec. P 37,957, 56 USLW 2679 Vivian VOLK, Plaintiff-Appellant, v. Gregory COLER, Jessie Hairston, Marty Lohman, Jesse Viers, James Tapen, Thomas Ward, and the State of Illinois Department of Children and Family Services, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patricia C. Benassi, Bennassi & Benassi, P.C., Peoria, Ill., for plaintiff-appellant.
Valeria J. Peiler, Office of Atty. Gen., Chicago, Ill., for defendants-appellees.
Before CUDAHY and MANION, Circuit Judges, and WILL, Senior District Judge. *
Vivian Volk, an alleged victim of sexual harassment, sex discrimination and retaliation in her employment with the Illinois Department of Children and Family Services ("DCFS"), brings this appeal following a separate bench trial (Title VII claims) and jury trial (other claims). Volk initially brought claims under: (1) 42 U.S.C. Sec. 1983 (), 42 U.S.C. Sec. 1985(3) (), the due process clause of the fourteenth amendment (unfair grievance proceedings) and the first amendment 1 (violation of the right to oppose alleged sex discrimination and sexual harassment) against defendants George Coler, Jessie Hairston, Marty Lohman, Jesse Viers, James Tapen and Thomas Ward, in their official and individual capacities, (hereinafter, collectively referred to as the "individual defendants"); and (2) Title VII (sex discrimination, sexual harassment After all the evidence was presented, but before submitting the plaintiff's claims to the jury, the district court directed a verdict for defendants Coler and Hairston on all claims, and for defendants Tapen, Lohman, Ward and Viers on the Secs. 1983 and 1985(3) and due process claims. The district court entered judgment for the DCFS on all of Volk's Title VII claims. See Volk v. Coler, et al., 638 F.Supp. 1540 (C.D.Ill.1986) (directed verdicts); Volk v. Coler, et al., 638 F.Supp. 1555 (C.D.Ill.1986) (Title VII). Volk's first amendment claims were submitted to the jury and a verdict was entered against defendants Tapen, Lohman, and Ward, but not Viers, in the amount of $35,000 in compensatory damages and $30,000 against Tapen and $10,000 against Ward in punitive damages. Volk appeals the directed verdicts and Title VII judgment. The defendants' cross-appeal has been dismissed pursuant to Circuit Rule 3(b).
conspiracy to retaliate and retaliation) (42 U.S.C. Sec. 2000e et seq.) against the DCFS. 2 The individual defendants were all DCFS supervisory employees
We find that substantial evidence does not support any of Volk's claims against defendants Coler, Hairston and Viers and we therefore affirm the district court's directed verdicts with respect to all claims against them. We also find that Volk had no protected property interest in continued employment or placement at a specific DCFS office while employed by the DCFS and we therefore affirm the district court's directed verdicts with respect to her due process claims. We find that substantial evidence exists as to Volk's Sec. 1985(3) conspiracy claims against defendants Tapen, Lohman and Ward and we reverse the district court's directed verdicts with respect to Volk's Sec. 1985(3) claims against these defendants. However, because Volk has already been compensated for all of the acts giving rise to her Sec. 1985(3) conspiracy claims, we do not remand for a new trial with respect to these claims. Finally, we find that substantial evidence exists as to Volk's Sec. 1983 sex discrimination and sexual harassment claims against defendants Tapen, Ward and Lohman and we therefore reverse the district court's directed verdicts with respect to these claims. Volk has already been compensated for all the acts occurring after January 9, 1980 which gave rise to her Sec. 1983 claims. Such acts of alleged sex discrimination and sexual harassment were only committed by Tapen and Hairston, and we have affirmed the directed verdicts in favor of Hairston. Accordingly, we remand for a new trial only with respect to her Sec. 1983 claims against Tapen for acts which occurred before January 9, 1980. Evidence of Tapen's acts which occurred after January 9, 1980 are relevant and admissible to establish a pattern and practice of harassment and discrimination but damages on remand are limited to pre-January 9, 1980 acts.
With respect to Volk's Title VII retaliation claims against the DCFS for denying her promotions in violation of her first amendment rights, which the district court dismissed prior to the jury's verdict against Tapen, Lohman and Ward, the district court was bound on the retaliation aspect of her Title VII claims by the jury's verdict with respect to acts occurring after January 9, 1980. That verdict was not set aside by the district court and the appeal with respect thereto was dismissed by the defendants. A judgment in the amount of $35,000, the amount awarded against Tapen, Lohman and Ward, representing back With respect to acts prior to January 9, 1980, the district court will be bound under Title VII by any jury verdict on the retrial of Tapen for acts before that date, unless the court sets the verdict aside. An appropriate judgment for or against the DCFS should be entered on the jury's verdict.
pay, should have been entered against the DCFS. Punitive damages are not recoverable under Title VII. Accordingly, we reverse that portion of the district court's judgment for the DCFS which dismissed Volk's Title VII retaliation claims and direct the district court to enter a judgment against the DCFS in the amount of $35,000, for which it and defendants Tapen, Ward and Lohman are jointly and severally liable.
The district court would have been bound on Volk's other Title VII claims against the DCFS, sex discrimination and sexual harassment, by a jury's verdict on her Sec. 1983 sex discrimination and sexual harassment claims against the individual DCFS employees Tapen, Lohman and Ward which the district court erroneously dismissed. We have reversed the dismissal of those claims by the district court against the individual defendants. We have not, however, ordered a new trial on those claims because Volk has already been compensated in the jury's verdict for the post-January 9, 1980 acts of the individual defendants. Similarly, while we reverse the judgment dismissing Volk's Title VII claims of sex discrimination and sexual harassment for post-January 9, 1980 acts against the DCFS, no further award of damages against the DCFS or equitable relief is necessary or appropriate.
Volk began working as a child abuse outreach worker in November, 1978 for the Covenant Counseling Service ("Covenant"), a branch of Covenant Children's Home in Princeton, Illinois. Volk was assigned to work in the DCFS' Ottawa Field Office following a grant received by Covenant and pursuant to a contract between the DCFS and Covenant. Tapen was the Team Leader of the DCFS' Ottawa Field Office and Volk's direct supervisor at Ottawa, managing her daily work. Volk's allegations focus on Tapen's actions allegedly conducted with the knowledge and approval of the other individual defendants.
Volk contends that her professional relationship with Tapen was initially satisfactory but deteriorated when she rejected his numerous sexual advances, suggestive displays and crude remarks. Volk alleges that, although she was married and he knew it, Tapen began persistently inviting her out socially after work, which she declined. Volk claims that Tapen touched her in many overtly sexual and offensive ways, made several explicit sexual gestures before her, and frequently called her "hon," "honey," "babe" or "tiger."
Volk alleges that at a DCFS social function in March, 1979, Tapen made several sexually offensive advances toward her. Volk objected and said, "Tapen, I'm not going to mess with you." Tapen suggested that Volk and her co-worker Mary Wegrzyn were "queer" and later told Wegrzyn that "if it wasn't for you filling her with the women's lib ..., she'd be staying at home with her old man where she belongs." 3
According to Volk, later that week, and a few days after Volk left her husband, Tapen called Volk into his office and complained that she and Wegrzyn were spending too much time together and ignoring other workers. Tapen indicated, however, that Volk was working satisfactorily and none of her co-workers had complained about her work. Volk then asked what she should be doing differently. According to Volk did not respond favorably to Tapen's suggestions. According to Volk, Tapen thereafter reacted in an abrupt and cold manner towards her, and ignored his responsibilities regarding her cases. Tapen repeatedly called Volk's work "... women's lib...."
Volk, Tapen then leaned back in his chair, slid way down, ..., smiled and said, "I'm just telling you to be nicer to everybody."
Volk contends that Tapen engaged in similar acts of alleged sexual harassment against three other Covenant employees: Kathy Thorne, Alice Fitzgerald and Wegrzyn. Tapen allegedly touched Thorne in offensive manners, called her "hon," "honey," or "babe," and, after she objected, verbally abused her. In one instance, Tapen said to a male employee, Henry Over, in Thorne's presence, "See, I told you she was a ..., and the reason she's a ... is because she doesn't have a man." Thorne was later transferred to Covenant's Princeton office. Volk alleges that Tapen engaged in the same sexual gestures while sitting in front of Fitzgerald that he had in front of her. Volk further contends that Tapen made several sexual gestures towards Wegrzyn, called her "honey," "babe" and "tiger" and, after she objected, said ...
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