Valentine, Donna v. City of Chicago ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2688
DONNA VALENTINE,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, a municipal corporation,
JOHN TOMINELLO, MIKE DITUSA, and JOSEPH SENESE,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CV 2918—Samuel Der-Yeghiayan, Judge.
____________
ARGUED MAY 3, 2006—DECIDED JUNE 27, 2006
____________
Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. 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 supervi-
sors, Mike DiTusa and Joseph Senese. Valentine’s com-
plaint alleged a Title VII violation, an Equal Protection
claim, and various state law claims. The district court
2 No. 05-2688
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.
I. Background
Valentine worked in the Chicago Department of Trans-
portation 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, address-
ing 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 harass-
ing 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
No. 05-2688 3
Sexual Harassment Office (“SHO”) about Farrell’s com-
plaints, 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 harass-
ment 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 fiancé 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. Addition-
ally, 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
4 No. 05-2688
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 com-
plain about Tominello’s harassment. Senese transferred
Tominello to another job site the next day, September 26,
No. 05-2688 5
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.” Accord-
ing 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. Plain-
tiff 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
6 No. 05-2688
April 2003, she was transferred to the City’s Water Depart-
ment.
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 harass-
ment. 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 con-
cluded 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 against Tominello was
inadequate; the City simply moved him to another location.
Defendants filed a motion for summary judgment on all
of Valentine’s federal claims. The district court granted
Defendants’ motion in full. The district court did not
address Valentine’s state law tort claims, finding that they
should be raised in state court because all the federal
claims were dismissed. Valentine appeals the district
court’s judgment as to her Title VII claim and her sexual
harassment Equal Protection claim.
No. 05-2688 7
II. Discussion
We review the district court’s grant of summary judgment
de novo, viewing the facts and drawing all inferences in the
light most favorable to Valentine, the nonmoving party.
Scaife v. Cook County, 446 F.3d 735, 738 (7th Cir. 2006).
A. Title VII
In order to establish a prima facie case of hostile environ-
ment sexual harassment under Title VII, Valentine
was required to show that:
(1) she was subjected to unwelcome sexual harassment
in the form of sexual advances, requests for sexual
favors or other verbal or physical conduct of a sexual
nature; (2) the harassment was based on sex; (3) the
sexual harassment had the effect of unreasonably
interfering with the plaintiff’s work performance in
creating an intimidating, hostile or offensive working
environment that affected seriously the psychological
well-being of the plaintiff; and (4) there is a basis for
employer liability.
Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027,
1032 (7th Cir. 1998).
1. Notice
The district court found that Valentine did not prove the
fourth element of her claim—a basis for employer liability.
According to the district court, Valentine did not put the
City on notice of Tominello’s alleged harassment until
September 25, 2002, at which time the City responded
appropriately to her complaint.
8 No. 05-2688
a. Senese
The district court found that Senese responded properly
to Valentine’s complaint by transferring Tominello to a
different yard the day after Valentine complained to him
about the September 25, 2002, “cookie incident.” The
district court determined that there was no evidence that
Senese was aware of misconduct by Tominello prior to
September 25, 2002.
Valentine argues that Senese was on notice of her
harassment prior to September 25, 2002, because he was
aware that other women who had worked with Tominello
had complained that he sexually harassed them. The record
shows that Elizabeth Farrell complained to Senese about
Tominello, that Senese failed to report Farrell’s complaint
to SHO, and that he was reprimanded for this failure.
Senese was also aware Tominello had been accused by
another female co-worker, Colleen Julian, of sexual harass-
ment. In response to Julian’s complaints, Senese had moved
Tominello to the Bosworth Yard. Valentine argues that
because Senese knew of Tominello’s record, he should have
recognized that Tominello would continue to sexually
harass female employees at the Bosworth Yard location.
We agree with the district court that Valentine has failed
to demonstrate that Senese was on notice that she was
being harassed prior to her September 25, 2002, complaint.
This was the first time Valentine complained to Senese
about Tominello, and Senese transferred Tominello out of
the Bosworth Yard the following day. Although Senese was
aware that Tominello had been accused of sexually harass-
ing female co-workers in the past, this is insufficient to
show that Senese was aware that Tominello’s bad behavior
had continued.
No. 05-2688 9
b. DiTusa
i. Power to transfer
The district court determined that Valentine’s complaints
to DiTusa were insufficient to put the City on notice that
she was being harassed by Tominello, because DiTusa was
not Valentine’s supervisor. According to the district court,
DiTusa was not Valentine’s supervisor for purposes of Title
VII because he: 1) did not receive any more pay than the
other motor truck drivers; 2) did not have authority to hire
employees; 3) did not have authority to terminate, promote,
or demote employees; 4) did not “evaluate Plaintiff’s work
performance in any way”; 5) occasionally drove trucks on
assignments himself; and 6) did not have authority to
transfer employees out of CDOT. The district court also
found that DiTusa did not have authority to transfer an
employee to another yard within CDOT, because Valentine
“admitted during her deposition that she has no basis other
than her own personal belief that DiTusa in fact transferred
other employees to other yards.”
Valentine argues that there is a material question of fact
as to whether DiTusa was her supervisor. She asserts that
DiTusa managed the 45 to 50 drivers at the Bosworth Lot,
held the title of Lot Supervisor, and believed himself to be
a supervisor. Valentine also points out that DiTusa admit-
ted in his Local Rule 56.1(a)(3) statement of uncontested
facts that he had power to transfer individuals between
various yards within CDOT. According to Valentine, the
district court erroneously found that her testimony that
DiTusa had the power to transfer employees was “her own
speculation,” because in fact her testimony was based on
personal knowledge and was supported by DiTusa’s own
statements.
We agree with Valentine that there is a material question
of fact as to whether DiTusa should be considered her
supervisor for Title VII purposes. “[T]he essence of supervi-
10 No. 05-2688
sory status is the authority to affect the terms and condi-
tions of the victim’s employment. This authority primarily
consists of the power to hire, fire, demote, promote, transfer,
or discipline an employee. Absent an entrustment of at least
some of this authority, an employee does not qualify as a
supervisor for purposes of imputing liability to the em-
ployer.” Parkins, 163 F.3d at 1034 (emphasis added).
In this case, Valentine has presented evidence that
DiTusa had power to transfer employees between lots
within CDOT. The district court erroneously concluded that
the only evidence on this point was Valentine’s own specu-
lation. In fact, Defendants admitted that DiTusa has power
to transfer individuals between yards, although he does not
have power to transfer employees out of CDOT. Specifically,
Defendants stated in their Local Rule 56.1(a)(3) statement
of uncontested facts:
56.1(a)(3) Statement No. 42: Further, DiTusa had no
authority to transfer anyone out of the Department of
Transportation, and could only transfer people yard to
yard within the Department of Transportation. (Empha-
sis added.)
Clearly, this is not a hearsay statement by Valentine—it is
an admission by the City.
Accepting for the sake of argument that it made this
admission, the City argues that Valentine waived the
argument by failing to make it in her opening or reply brief.
We cannot accept the City’s position. In at least two places
in her opening brief, on pages 18 and 23, Valentine cited to
the exact page of the record containing the above-quoted
statement. Thus, there is at least a material question of fact
regarding whether DiTusa has the power to transfer
employees and, in turn, whether DiTusa was Valentine’s
supervisor for purposes of Title VII.
Finally, we are unpersuaded by the City’s argument that
even if DiTusa did have authority to transfer employees,
No. 05-2688 11
this “marginal discretion” over Valentine’s work is insuffi-
cient to impute Title VII liability to the City. Defendants
rely on Hall v. Bodine Electric Co., 276 F.3d 345 (7th Cir.
2002), for this proposition. There, the Court found that the
defendant harasser was not a supervisor where he “(1)
possessed the authority to direct [the plaintiff’s] work
operations (i.e., which machines she ran); (2) provided input
into her performance evaluations, and (3) was charged with
training her and other less experienced employees.” Id. at
355. The Court concluded that there “is nothing in the
record indicating that Bodine entrusted him with the
authority to ‘hire, fire, demote, promote, transfer, or disci-
pline’” the plaintiff. Id. (emphasis added). The present case
is distinguishable because Valentine has presented evidence
that DiTusa had the power to transfer employees. As this
Court has held, the ability to transfer employees is the
ability to affect the terms and conditions of employment.
See Parkins, 163 F.3d at 1034.
ii. City policy on reporting sexual harassment
The district court concluded that no reasonable trier of
fact could find that Valentine thought DiTusa was the
proper person to complain to about sexual harassment. The
district court emphasized that in March 2000, Valentine
attended a Workplace Training Session at which she
received “the telephone number and the address of the
City’s Sexual Harassment Office.” Therefore, according to
the district court, Valentine was on notice that she should
bring any complaints of sexual harassment to SHO, not her
supervisor.
Valentine argues that she reasonably believed that
DiTusa was the proper person to whom she should report
incidents of sexual harassment. Valentine maintains that
“[t]he City’s sexual harassment policy provides its em-
ployees with the option of reporting complaints to ‘a
12 No. 05-2688
supervisor in the complainant’s department.’” But, accord-
ing to Valentine, the policy “fail[s] to identify who is the
supervisor in [her] department.” Valentine asserts that
she reasonably concluded that DiTusa was an appropri-
ate person with whom to lodge complaints, and the City
should be imputed with knowledge of her harassment.
Additionally, when Valentine complained to DiTusa about
the harassment, he told her that he would take care of the
problem. Valentine argues that “DiTusa’s acquiescence to
resolving the sexual harassment problems further provides
a reasonable basis for Plaintiff’s belief” that he was her
supervisor.
We agree with Valentine that there is sufficient evidence
showing that she reasonably believed that DiTusa was
the appropriate person to contact with complaints of sexual
harassment. The fact that Valentine had contact informa-
tion for SHO does not demonstrate that she was on notice
that the only way she could report harassment was to bring
a complaint to SHO. Indeed, that is not the case. The City’s
sexual harassment policy also provides that an employee
can choose to bring complaints to a supervisor within his or
her department. The policy does not identify a supervisor
for each department. Given the level of day-to-day supervi-
sion DiTusa had over Valentine and other employees at
Bosworth Yard, a reasonable juror could conclude that
Valentine reasonably thought that DiTusa was the appro-
priate point person. This is especially so because Senese
worked on the other side of the City and had no day-to-day
contact with Valentine.
iii. Valentine’s complaints
Valentine stated that she told DiTusa that Tominello was
“aggravating [her], that he was being rude, [and] that he
had put his hands on [her].” Defendants argue that these
complaints were insufficient to notify DiTusa that Valentine
No. 05-2688 13
was being sexually harassed, citing our recent decision in
Velez v. City of Chicago, 442 F.3d 1043 (7th Cir. 2006). The
district court did not pass on this issue, instead basing its
decision on the finding that DiTusa was not Valentine’s
supervisor for purposes of Title VII.
As we stated in Velez, “a successful hostile work environ-
ment claim requires a plaintiff to demonstrate that the
harassment was based on his or her protected status.” Id. at
1048. We agree with Defendants that Valentine’s first two
complaints—that Tominello was “aggravating” and
“rude”—are not, taken alone, sufficient to show that DiTusa
was on notice of the sexual harassment. A jury could find,
however, that Valentine’s complaint that Tominello “put his
hands on” her—when taken in conjunction with her com-
plaints that he was “aggravating” and “rude”—is sufficient
to show that DiTusa was on notice. The complaint about
unwanted touching serves as “evidence that she gave the
employer enough information to make a reasonable em-
ployer think there was some probability that she was being
sexually harassed.” Parkins, 163 F.3d at 1035 (quoting
Zimmerman v. Cook County Sheriff’s Dep’t, 96 F.3d 1017,
1019 (7th Cir. 1996)). Cf. Zimmerman, 96 F.3d at 1017(finding that a complaint by a female employee to her
supervisor that she was afraid of a male co-employee’s
“political clout” was not sufficient to put the employer on
notice that she was being sexually harassed by the co-
employee). This is especially true in the context of this case,
where Valentine was one of only a handful of women
working in a traditionally male workplace.1
1
There is additional evidence in the record demonstrating that
DiTusa recognized that Valentine was complaining about sexual
harassment. DiTusa testified that he was aware Tominello was
transferred to the Bosworth Yard because he had been accused of
sexual harassment at his previous placement. Unfortunately,
Valentine failed to cite this evidence in her opening or reply brief.
(continued...)
14 No. 05-2688
Additionally, we are unpersuaded by Defendants’ argu-
ment that the six instances of touching complained of by
Valentine were “too tepid to make out a case of sexual
harassment.” Defendants rely on Adusumilli v. City of
Chicago, 164 F.3d 353 (7th Cir. 1998), in support of this
argument. In that case, we found that the plaintiff was
not subjected to an objectively hostile work environment
where she complained of “no more than teasing about
waving at squad cars, ambiguous comments about bananas,
rubber bands, and low-neck tops, staring and attempts to
make eye contact, and four isolated incidents in which a co-
worker briefly touched her arm, fingers, or buttocks.” Id. at
361. The focus in Adusumilli was different than in the
present case: it was on whether instances of touching were
enough to demonstrate that a work environment was
objectively hostile, not on whether complaints about
touching were sufficient to put an employer on notice of
sexual harassment. Thus, while the six instances of touch-
ing complained of by Valentine may not, by themselves, be
enough to show an objectively hostile work environment for
purposes of Title VII, Valentine’s complaints about the
unwanted touching could be enough to show DiTusa knew
there was some probability that Valentine was being
sexually harassed. We therefore find that there is a mate-
rial question of fact as to whether DiTusa was on notice of
the harassment.
1
(...continued)
Instead, she introduced the evidence as part of a motion to
supplement the record, filed in response to questions raised at
oral argument. This proffer comes too late. Just as arguments
raised for the first time at oral argument are waived, Szczesny
v. Ashcroft, 358 F.3d 464, 465 (7th Cir. 2004), so too are argu-
ments made in supplemental filings following oral argument.
No. 05-2688 15
2. Hostile work environment
Because it rested its decision on the finding that Valen-
tine had not properly notified the City of her harassment,
the district court did not consider whether Tominello’s
actions were sufficiently severe to constitute a hostile
work environment. However, “[w]e may affirm a district
court’s judgment on alternate grounds found in the record.”
Cont’l Ins. Co. v. M/V ORSULA, 354 F.3d 603, 606 (7th Cir.
2003).
Defendants argue as an alternate ground for affirmance
that the harassment Valentine alleges to have suffered was
insufficient to amount to a hostile work environment.
Defendants accept Valentine’s allegations as true, but argue
that at most Tominello’s conduct was “inappropriate,
boorish, and crass.” According to Defendants, although
Tominello’s requests to Valentine for dates were frequent,
they were not physically threatening. And although Valen-
tine found the six occasions on which Tominello touched her
to be creepy and sexual, the contact was infrequent and
with body parts that are not conventionally viewed as
sexual.
Additionally, Defendants note that the Bosworth Yard “is
an environment where vulgarity is common” and Valentine
admitted that she was not bothered by this. Defendants
maintain that Valentine admitted that Tominello’s conduct
did not affect her ability to do her job or cause her to feel
humiliated. Valentine only saw Tominello for approximately
30 to 60 minutes a day, when drivers swiped in and out of
work. Finally, Defendants maintain that Valentine’s
complaints of sleeplessness, headaches, anxiety attacks,
nausea, and weight loss are irrelevant to her Title VII claim
because “she linked these complaints solely to her First
Amendment retaliation claim, which she has waived on
appeal.”
16 No. 05-2688
There is no bright-line test for determining when a
workplace becomes objectively hostile. There are, however,
a number of factors courts must consider, “including the
frequency and severity of conduct, whether it is threatening
and/or humiliating or merely offensive, and whether the
harassment unreasonably interferes with an employee’s
work.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965,
975-76 (7th Cir. 2004). In the case of discriminatory
statements, “we must assess the frequency of their use, as
well as whether the remarks were stated directly to the
plaintiff or whether the plaintiff heard them secondhand.”
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271 (7th
Cir. 2004) (internal citations omitted).
Evaluating these factors, we find that Valentine has
raised a genuine issue of material fact as to whether she
was subjected to a hostile work environment. Valentine
alleged that Tominello’s harassment was very frequent: he
rubbed his crotch in front of her nearly every day; asked her
on twenty occasions to leave her fiancé; asked her on dates
between 30 and 40 times; made repeated comments about
her “tits” and “ass”; and on six occasions rubbed Valentine’s
arm or shoulder. Valentine also alleged that Tominello’s
behavior was humiliating. For instance, the “cookie inci-
dent” of September 25, 2002, occurred in front of Valentine’s
co-workers, including DiTusa. Valentine admits that she
viewed this incident as the last straw and became angry
and yelled at Tominello. When Valentine confronted
Tominello is this manner, he threatened to file a violence in
the workplace complaint against her. All of this evidence,
taken as true, supports Valentine’s claim that she was
subjected to severe and pervasive sexual harassment.
Because Tominello’s alleged conduct was so frequent and
aimed directly at Valentine, this case is distinguishable
from other recent cases in which we have found that a work
environment was not objectively hostile. For instance, in
Whittaker v. Northern Illinois University, 424 F.3d 640 (7th
No. 05-2688 17
Cir. 2005), we found that a male supervisor who invited a
female employee on two occasions to join him on his boat for
“a weekend of drinking and other things” and made sexual
comments to co-workers outside of the plaintiff’s presence
had not created a hostile work environment. Id. at 645-56.
In Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675 (7th Cir.
2005), we found that a co-worker who used vulgar language
in front of plaintiff, occasionally cursed and yelled at her,
and made isolated comments about older women in the
workplace did not create a hostile work environment. Id. at
678. Here, by contrast, Tominello allegedly made comments
or gestures directly to Valentine on a nearly daily basis and
touched her on half a dozen occasions.
Valentine has also raised a question whether the work-
place was subjectively hostile. Valentine alleges that she
told Tominello two to three times per week to leave her
alone and that she was not interested in him. Contrary
to Defendants’ assertions, Valentine stated below that
she experienced anxiety, inability to concentrate, and
depression as a result of Tominello’s harassment. She
stated that these problems began occurring before the
“cookie incident,” immediately after which Tominello was
transferred to another yard. Finally, Dr. Fitzgerald’s report,
which concludes that Valentine suffered from emotional
trauma because of the harassment, supports Valentine’s
claim. In sum, we find that Plaintiff has raised a genuine
issue of material fact as to her Title VII claim against the
City.
18 No. 05-2688
B. Equal Protection
Sexual harassment by a state employer constitutes sex
discrimination in violation of the equal protection clause.
Bohen v. City of East Chi., 799 F.2d 1180, 1185 (7th Cir.
1986). As we explained in Bohen,
Creating abusive conditions for female employees and
not for male employees is discrimination. Forcing
women and not men to work in an environment of
sexual harassment is no different than forcing women
to work in a dirtier or more hazardous environment
than men simply because they are women. Such unjus-
tified unequal treatment is exactly the type of behavior
prohibited by the equal protection clause[.]
Id. Victims of sexual harassment by a state employer or
employee can seek redress under § 1983 of the Civil Rights
Act, 42 U.S.C. § 1983.
1. Color of state law
When an equal protection claim is brought against an
individual state employee, the plaintiff must show that the
individual was acting under color of state law. “Action is
taken under color of state law when it involves a misuse
of power, ‘possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.’ As a result, acts by a state officer
are not made under color of state law unless they are
related in some way to the performance of the duties of the
state office.” Honaker v. Smith, 256 F.3d 477, 484-85 (7th
Cir. 2001) (quoting Walker v. Taylorville Corr. Ctr., 129
F.3d 410, 413 (7th Cir. 1997)). The district court found that
Valentine failed to show that any of the three individual
Defendants acted under color of state law. On appeal,
Valentine does not challenge the district court’s finding
as to Tominello. Thus, our opinion considers only Senese
and DiTusa.
No. 05-2688 19
a. Senese
The district court found that Senese did not act under
color of state law because he was not a supervisor for § 1983
purposes. Even if Senese was a supervisor, the district court
reasoned, he acted appropriately in responding to Valen-
tine’s complaint.
Valentine maintains that it is undisputed that Senese
was a supervisor: he was Acting General Foreman of CDOT,
and SHO had recommended that he be disciplined after he
failed to make a supervisory referral to SHO when Eliza-
beth Farrell complained to him that Tominello was harass-
ing her. Valentine also argues that Senese need not be a
supervisor to be acting under color of state law—the
relevant inquiry is whether the defendant is clothed with
the authority of state law.
We find that there is a material question of fact as to
whether Senese acted under color of state law. The City
admitted in its statement of undisputed facts that Senese
was a supervisor of motor truck drivers at various CDOT
yards, including the Bosworth Yard. Senese made work
assignments for drivers and had the ability to transfer
employees, which he did when Valentine complained to him
about the “cookie incident.” Additionally, the action that
Valentine complains of—Senese’s decision to transfer
Tominello to the Bosworth Yard after he received com-
plaints from female coworkers about Tominello’s harass-
ment—was undertaken while Senese was exercising his
responsibilities as foreman.
b. DiTusa
The district court found that DiTusa did not act under
color of state law because he was not Valentine’s supervisor
for § 1983 purposes. Valentine argues that there is a
material question of fact as to whether DiTusa was a
20 No. 05-2688
supervisor with authority and control over Valentine, as
explained above in relation to her Title VII claim.
We agree with Valentine that there is a question of
material fact as to whether DiTusa is a supervisor. There is
evidence that he had the power to transfer employees out of
Bosworth Yard. Also, Valentine and the other drivers at the
yard commonly brought work problems to DiTusa for
resolution. DiTusa was acting under color of state law
because he was exercising his responsibilities as Yard
Supervisor when he took Valentine’s complaints about
Tominello, talked to Tominello about the complaints, and
decided not to report or transfer Tominello.
2. Intent
“[A] a plaintiff can make an ultimate showing of sex
discrimination either by showing that sexual harassment
that is attributable to the employer under § 1983 amounted
to intentional sex discrimination or by showing that the
conscious failure of the employer to protect the plaintiff
from the abusive conditions created by fellow employees
amounted to intentional discrimination.” Bohen, 799 F.2d
at 1187.
a. Senese
The district court found that there was no evidence
Senese intended to harass Valentine or condone the harass-
ment by Tominello. The district court emphasized that as
soon as Valentine complained to Senese, he transferred
Tominello to a different yard. The district court also was
“not persuaded that Senese can reasonably be deemed to
have turned a blind eye to the alleged harassment against
Valentine simply because Senese knew that there had been
a prior complaint against Tominello made by another
employee.” Valentine argues that Senese condoned the
No. 05-2688 21
harassment because he knew that Tominello had harassed
women in the past and had taken no action other than
transferring him.
We find that while Senese may have acted negligently,
there is no evidence that he condoned Tominello’s harass-
ment of Valentine. Indeed, there is no evidence that he was
even aware of it until Valentine called him following the
“cookie incident.” There is no evidence that Senese pre-
dicted that Tominello would harass Valentine when he was
transferred to Bosworth Yard.
b. DiTusa
The district court found that Valentine’s “vague conten-
tion that she complained to DiTusa and that the harass-
ment continued is insufficient to show intent.”
We find that there is a material question of fact as to
whether DiTusa intentionally condoned Tominello’s harass-
ment of Valentine. Valentine complained to DiTusa about
Tominello on approximately ten occasions. Each time,
DiTusa told her he would take care of the problem. Each
time, he went to Tominello and told him to stop. A reason-
able juror could find under these circumstances
that DiTusa’s response was obviously inadequate, and
DiTusa was aware that to prevent the harassment he would
have to take more severe action against Tominello, such as
reporting him or transferring him. Additionally, when
Valentine told DiTusa that she had complained to Senese,
DiTusa allegedly told her, “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.” Later, when
DiTusa was required to give Senese names of drivers who
had seen the “cookie incident,” DiTusa became very angry,
throwing his chair against the wall and screaming profani-
ties. A juror could infer from this evidence that DiTusa had
consciously chosen not to protect Valentine from Tominello’s
22 No. 05-2688
advances, and was angry when Valentine took matters into
her own hands. Thus, there is a material question of fact as
to whether DiTusa intentionally discriminated against
Valentine.
3. Custom, policy or practice
“Under § 1983, actions of a state entity’s employees are
attributed to the state entity itself if those actions are
in furtherance of the entity’s ‘policy or custom.’ ” Bohen, 799
F.2d at 1188. “Under our case law, unconstitutional policies
or customs can take three forms: (1) an express policy that,
when enforced, causes a constitutional deprivation; (2) a
widespread practice that, although not authorized by
written law or express municipal policy, is so permanent
and well settled as to constitute a ‘custom or usage’ with the
force of law; or (3) an allegation that the constitutional
injury was caused by a person with final policymaking
authority.” Rasche v. Vill. of Beecher, 336 F.3d 588, 597 (7th
Cir. 2003).
In this case, the district court found that Valentine
failed to show that the City had an express policy or
practice that encouraged or condoned harassment, that any
City employee with policymaking authority was involved in
the alleged harassment, or that sexual harassment was a
widespread practice in CDOT.
Valentine argues that she has submitted sufficient
evidence that the City had a custom or practice of failing to
adequately address sexual harassment complaints by
its female employees. Valentine maintains that the City’s
sexual harassment policy is ineffective, in part because
SHO has no authority other than to investigate and recom-
mend. Additionally, the City allowed Tominello, a known
harasser (according to complaints by two women, Farrell
and Julian), to be transferred to a yard where women
worked and did not monitor his actions once he was trans-
ferred.
No. 05-2688 23
We find that Valentine has failed to show that it was
the City’s policy or custom to condone sexual harassment of
women. Valentine does not allege that the City has an
express policy condoning sexual harassment. Nor does
Valentine argue that her constitutional injury was caused
by a person with final policymaking authority, because
Senese and DiTusa, the persons whom Valentine accuses of
responding to her complaints inappropriately, do not have
any policymaking authority.
Valentine instead focuses on the third type of unconstitu-
tional policy or custom, “a widespread practice that, al-
though not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a
‘custom or usage’ with the force of law.” Rasche, 336 F.3d at
597. Valentine has presented insufficient evidence of a
widespread practice by the City to condone sexual harass-
ment. As Defendants point out, all of Valentine’s allegations
relate to one harasser—Tominello; and two supervi-
sors—Senese and DiTusa. Plaintiff admits that Senese
responded to her complaint about Tominello almost immedi-
ately, reporting him to SHO and transferring him to
another job site. Under this Circuit’s case law, these
allegations are insufficient to demonstrate that the City has
a custom or practice of condoning sexual harassment. See,
e.g., Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir.
2002) (finding that the plaintiff failed to show that “the City
had a custom of erroneously denying to vehicle owners that
their vehicles were at” a certain impound lot, where the
plaintiff only offered three examples of when such denials
had occurred).
Finally, the record shows that the City responded to
complaints of sexual harassment once the complaints
made it to SHO. Supervisors are required by City policy
to report complaints of sexual harassment to SHO, and
when Senese failed to do so when Elizabeth Farrell com-
plained about Tominello, he was counseled for his failure.
24 No. 05-2688
Additionally, in both Valentine’s and Farrell’s cases (Julian
did not go to SHO), SHO investigated the complaint and the
City suspended Tominello without pay for nearly a month.
Although Valentine may view these sanctions as insuffi-
cient, they demonstrate that the City does not have a
widespread practice of condoning sexual harassment.
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s
grant of summary judgment for the City on Valentine’s Title
VII hostile work environment sex discrimination claim. We
AFFIRM the district court’s grant of summary judgment for
the City, Tominello, and Senese on Valentine’s § 1983 equal
protection claim. We REVERSE the district court’s grant of
summary judgment for DiTusa on Valentine’s § 1983 equal
protection claim. The case is REMANDED for further proceed-
ings consistent with this opinion. Circuit Rule 36 shall
apply.
No. 05-2688 25
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-06