Wilson v. Cook Cnty.

• Decision Date: 28 April 2014
• Docket Number: No. 13–1464.,13–1464.
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Krystal WILSON, Plaintiff–Appellant, v. COOK COUNTY, Defendant–Appellee.

742 F.3d 775

Krystal WILSON, Plaintiff–Appellant,

v.COOK COUNTY, Defendant–Appellee.

No. 13–1464.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 2014.

Decided Feb. 10, 2014.

Rehearing and Rehearing En Banc Denied April 28, 2014.^*

Dana L. Kurtz, Attorney, Kurtz Law Offices, Hinsdale, IL, for Plaintiff–Appellant.

James C. Pullos, Attorney, Chicago, IL, for Defendant–Appellee.

Before MANION and SYKES, Circuit Judges, and GRIESBACH, District Judge.^*

GRIESBACH, District Judge.

Krystal Almaguer (now Wilson), an out-of-work massage therapist, interviewed for a position at Oak Forest Hospital, a part of the Cook County Bureau of Health Services. Unfortunately, the job existed only in the mind of Felice “Phil” Vanaria, a politically-appointed staffer at the hospital who had no authority to interview or hire applicants, much less create positions. Vanaria used the promise of the phony job to convince Almaguer to give him erotic massages and engage in sexual contact. After Almaguer discovered the ruse and called the police department, she brought this action against Cook County under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. She also alleged state law torts. The district court granted summary judgment to Cook County, and we affirm.

I.

Between 1984 and 1998, Felice Vanaria was employed by the Cook County Adult Probation Department, a unit of the Circuit Court of Cook County under the supervision of the chief judge. During that period, Vanaria was involved in several incidents in which female probationers alleged he had sought sexual favors in exchange for looser conditions of probation. Following an investigation, Vanaria's employment was terminated. He spent the next four years working at a casino.

In 2002 Cook County Commissioner Joseph Moreno hired Vanaria, who had a history as a political operative, to be an administrative assistant. Moreno testified that he did not conduct employment checks on his own but relied on county human resources staff to conduct criminal background checks. He further stated that the most important qualifications for employees were loyalty and the ability to do the job they were required to do, and Vanaria had proven himself to be a loyal and effective political operative and fundraiser. Vanaria worked for Commissioner Moreno for nearly two years, and during that time there were no complaints about misconduct.

In late 2004 Commissioner Moreno recommended Vanaria for a job at the county's Oak Forest Hospital, and Vanaria began working there in 2005. Like Vanaria's previous job with Moreno, the position was a Shakman exempt position, meaning that it was excluded from the decrees prohibiting the county from making hiring decisions based on politics. See United States v. Del Valle, 674 F.3d 696, 698–99 (7th Cir.2012); Shakman v. Dunne, 829 F.2d 1387, 1389 (7th Cir.1987). This meant that rather than applying for the job through a typical competitive application process at the hospital itself, Vanaria obtained the job through the patronage of Commissioner Moreno and County Board President Todd Stroger. Although Vanaria was subject to fingerprinting, the investigation giving rise to his 1998 termination from the Adult Probation Department did not come to light during the hiring process. In fact, taking the facts in the light most favorable to Almaguer, it appears that the hospital was not even involved in the hiring process but was instead simply told that Vanaria would be working there. The hospital's human resources director explained that the hospital did not conduct independent background investigations of political patronage hires.

Vanaria's position at the hospital involved coordinating continuing education programs for physicians and staff. In 2005, a representative for the Eli Lilly & Co. pharmaceutical company alleged that Vanaria had attempted to condition her participation in one of these programs on her giving him a massage. An investigation resulted in oral counseling for Vanaria and an order to stay away from the representative, but no discipline.

In January 2007, after a referral from a mutual acquaintance, Vanaria called Krystal Almaguer to inquire about massage services. The conversation eventually turned to employment (Almaguer was unemployed at the time), and Vanaria suggested that there might be some positions at the hospital for which she would be qualified. The same day, Almaguer went to the hospital to provide Vanaria with a résumé. Without conducting a traditional interview, Vanaria offered her a $52,000–a–year position as a physical therapist. When she alerted Vanaria to the fact that she was not qualified as a physical therapist (she lacked the requisite degree and license), he explained that he could make things happen because certain people owed him favors. He also stated that he could get in trouble for getting her the job.

Vanaria's ruse proved comprehensive and convincing. During his meeting with Almaguer, he provided her with legitimate application forms and insurance paperwork, and he had her fill out a consent form for fingerprinting. Thus, apart from the alacrity and informality of the process, the meeting had many of the hallmarks of a bona fide job interview. On February 1, 2007, at Vanaria's request, Almaguer returned to his office with copies of her Social Security card and birth certificate. At this second meeting, Vanaria asked Almaguerto close the door to his office. He then instructed her that if she truly wanted the job, she had to kiss and massage him. Ultimately she removed her clothes, and Vanaria kissed her.

Later, after some hesitation about accepting the position, Almaguer eventually agreed to have Vanaria visit her at her home massage studio. There, the two removed their clothes and Almaguer acceded to Vanaria's wish that she manually stimulate him.

In an effort to prolong the unfortunate scheme, the next week Vanaria enlisted a female friend to pose as an HR employee and call Almaguer about a change in the position being offered. Vanaria explained that the new position would pay $10,000 more but would require Almaguer to give him another massage. This development was apparently enough to arouse Almaguer's suspicions, because she immediately called the hospital's HR department. When the HR department informed her that no such position had ever existed, Almaguer enlisted the help of the Orland Park Police Department. Vanaria eventually pled guilty to charges of official misconduct and bribery. This lawsuit against Cook County followed.

The district court initially granted summary judgment in favor of Cook County on the Title VII claim, as well as all of the state law claims, which the court had supplemental jurisdiction over pursuant to 28 U.S.C. § 1367 (and which are not before us on appeal). The court denied summary judgment as to the equal protection and due process claims. The court subsequently granted Cook County's motion for reconsideration and entered judgment on all of the claims. This appeal of the federal claims followed.

II.

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review the district court's decision to grant summary judgment de novo, and generally will construe all facts and reasonable inferences in the light most favorable to the non-moving party. Arizanovska v. Wal–Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir.2012).

A. Equal Protection

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a government agency may be liable when its official policy or custom inflicts the plaintiff's injury. But “a municipality may not be held liable under § 1983 solely because it employs a tortfeasor.” Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Instead, to “establish municipal liability, a plaintiff must show the existence of an official policy or other governmental custom that not only causes but is the moving force behind the deprivation of constitutional rights.” Teesdale v. City of Chicago, 690 F.3d 829, 833 (7th Cir.2012) (internal quotation marks omitted).

In support of her equal protection claim Almaguer argues that Cook County's policy of not responding to sexual harassment complaints was the cause of her constitutional injury. The district court originally sided with Almaguer, noting that by continuing to employ Vanaria despite the extensive history of misconduct, a jury could find that Cook County created the highly predictable risk that he would engagein sexual misconduct again. On reconsideration, however, the district court accepted the county's argument that employees of the Adult Probation Department, from which Vanaria had been terminated in 1998, were state, rather than county, employees. It followed that because Vanaria had been a state employee during the period of his most egregious sexual misconduct, the county's oversight and knowledge of Vanaria's activity was much more limited than originally thought. Since Almaguer could now point only to a single act of failing to address Vanaria's sexual misconduct—the 2005 incident with the Eli Lilly representative—the district court concluded Almaguer was unable to establish any kind of official policy or practice on which to hang municipal liability.

Almaguer does not challenge the district court's conclusion that Vanaria was not a county employee while working as a probation officer. Although his behavior as a probation officer does not directly speak to any of Cook County's practices or policies during that time period, Almaguer argues that the...