Krystal Wilson v. Cook County , 742 F.3d 775 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1464
KRYSTAL WILSON,
Plaintiff-Appellant,
v.
COOK COUNTY,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08-C-587— Sharon Johnson Coleman, Judge.
ARGUED JANUARY 9, 2014 — DECIDED FEBRUARY 10, 2014
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
*
Of the Eastern District of Wisconsin, sitting by designation.
2 No. 13-1464
mind of Felice “Phil” Vanaria, a politically-appointed staffer at
the hospital who had no authority to interview or hire appli-
cants, 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 Amend-
ment. 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
No. 13-1464 3
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
4 No. 13-1464
Vanaria and an order to stay away from the representative, but
no discipline.
In January 2007, after a referral from a mutual acquain-
tance, 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 Almaguer to
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.
No. 13-1464 5
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 reconsidera-
tion 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
6 No. 13-1464
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
(1986). We review the district court's decision to grant sum-
mary 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 (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 (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 harass-
ment 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 engage in sexual miscon-
duct again. On reconsideration, however, the district court
accepted the county’s argument that employees of the Adult
No. 13-1464 7
Probation Department, from which Vanaria had been termi-
nated 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
county’s treatment of Vanaria’s behavior after he was hired at
the hospital suffices to show that the county had a permanent
and well-settled policy of turning a blind eye to sexual miscon-
duct.
Almaguer analogizes her case to Bohen v. City of East
Chicago, Ind., where this court recognized that sexual harass-
ment “constitutes sex discrimination in violation of the equal
protection clause and is actionable under § 1983.” 799 F.2d
1180, 1185 (7th Cir. 1986). There, a female emergency dis-
patcher was subjected to pervasive sexual harassment by other
firefighters, including supervisors. We concluded that “sexual
harassment was the general, on-going, and accepted practice
at the East Chicago Fire Department, and high-ranking,
supervisory, and management officials responsible for working
8 No. 13-1464
conditions at the department knew of, tolerated, and partici-
pated in the harassment.” Id. at 1189. As such, this court
concluded that the plaintiff had stated a claim against the city
based on its established policy or custom.
Almaguer cites the 2005 incident between Vanaria and the
Eli Lilly representative as evidence that the county had a policy
or practice of inadequately investigating sexual harassment
claims. But the hospital investigated that incident and directed
Vanaria to stay away from the representative. She also makes
much of the fact that after her allegations came to light, the
county did not immediately terminate his employment. These
few incidents do not come close to establishing the kind of
pervasive custom that would give rise to liability under Bohen
and Monell. Although this court has not adopted any bright-
line rules for establishing what constitutes a widespread
custom or practice, it is clear that a single incident—or even
three incidents—do not suffice. Thomas v. Cook County Sheriff's
Dept., 604 F.3d 293, 303 (7th Cir. 2010) (citing Gable v. City of
Chi., 296 F.3d 531, 538 (7th Cir. 2002) and Cosby v. Ward, 843
F.2d 967, 983 (7th Cir. 1988)).
Municipalities may be found directly liable only when their
own policy or custom is the “moving force” behind the
deprivation. Teesdale, 690 F.3d at 833. Here, it is clear that the
moving force behind the harassment was Vanaria, not Cook
County. Accordingly, like the district court, we conclude that
Almaguer cannot establish that she suffered any equal protec-
tion injury at the hands of Cook County.
No. 13-1464 9
B. Due Process
As set forth above, sexual harassment claims brought under
§ 1983 are traditionally analyzed in the context of the Equal
Protection Clause. However, the substantive component of the
Due Process Clause may also come into play when a plaintiff
alleges that her bodily integrity was violated by a state actor.
Wudtke v. Davel, 128 F.3d 1057, 1063 (7th Cir. 1997). Here,
Almaguer argues that Cook County’s practice of failing to
screen political employees caused her to suffer a violation of
her due process right to bodily integrity.
Cook County first argues that Almaguer did not suffer any
due process injury because her bodily integrity was compro-
mised not by the county but by her own decision to trade
sexual favors for a chance at an attractive county job for which
she was grossly unqualified. Almaguer was not assaulted or
coerced; she was a willing participant who acceded to
Vanaria’s directives so long as the prospect of a job loomed
large. She did not call the police when the sexual activity was
proposed, nor even when it occurred. It was only when she
realized that she would not be receiving her end of the bargain
that she involved the authorities. Given her voluntary partici-
pation in the quid pro quo scheme, Cook County argues that
Almaguer cannot be said to have experienced any infringe-
ment of her due process rights.
Almaguer counters that her case is like Wudtke v. Davel,
supra, 128 F.3d at 1059, where a school superintendent alleg-
edly threatened a schoolteacher by refusing to approve the
renewal of her teaching license, and by otherwise making her
job much more difficult, unless she engaged in sexual acts with
10 No. 13-1464
him. That analogy might prove to be a difficult one. It is an
interesting question whether sexual contact extorted by a
current supervisor is fundamentally different than sexual
activity attained by promises of providing a job. But consider-
ation of these distinctions will have to wait for another day
because the county did not make this argument during district
court proceedings, and thus it is waived on appeal. Frey Corp.
v. City of Peoria, Ill., 735 F.3d 505, 509 (7th Cir. 2013).
Finding the issue waived, we will assume that Almaguer
suffered an injury to her bodily integrity and will focus, as the
parties and district court did, on the questions of whether Cook
County caused that injury and whether it possessed the
requisite culpability. To reiterate, in order 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, 690 F.3d at 833 (internal
quotation marks omitted).
We begin by noting the Supreme Court’s counsel that
“[w]here a plaintiff claims that the municipality has not
directly inflicted an injury, but nonetheless has caused an
employee to do so, rigorous standards of culpability and
causation must be applied to ensure that the municipality is
not held liable solely for the actions of its employee.” Brown,
520 U.S. at 405. In Canton v. Harris, the Supreme Court held
that to establish municipal liability on the theory that a facially
lawful municipal action has led an employee to violate a
plaintiff’s rights, a plaintiff must demonstrate that the munici-
pal action was taken with “deliberate indifference” to its
known or obvious consequences. 489 U.S. 378, 388 (1989).
No. 13-1464 11
Deliberate indifference means that the municipality knows or
should know that consequences will ensue because those
consequences were an obvious result of its conduct. “A
showing of simple or even heightened negligence will not
suffice.” Brown, 520 U.S. at 407.
Here, we are not satisfied that Vanaria’s history of sexual
misconduct was so egregious and pervasive that what hap-
pened to Almaguer was an obvious result of hiring Vanaria as
an administrative assistant. Our conclusion rests on an exami-
nation of Vanaria’s own conduct, both in the past and with
respect to Almaguer, and it also requires us to consider the
nature of the position the county hired him to fill.1
To recall, the most troubling conduct Vanaria engaged in,
so far as we know, was the coercion of female probationers
who were under his supervision. That occurred during the
1990s, and resulted in his termination in 1998. During the
ensuing seven years, Vanaria was employed, apparently
without incident, at a casino and with Commissioner Moreno
beginning in 2002. With Moreno’s support, Vanaria moved to
the hospital in 2005.
Thus, had the county conducted a thorough background
examination prior to allowing Vanaria to work at the hospital,
it would have uncovered the fact that he had engaged in
grossly inappropriate conduct as recently as seven years
1
In cases like this the questions of causation and deliberate indifference
often overlap. As the Supreme Court has noted, the question of the
predictability of the injury speaks to the municipality’s mental state as well
as to whether the hiring decision itself was the cause of the plaintiff’s injury.
Brown, 520 U.S. at 409-10.
12 No. 13-1464
earlier. However, it would also have learned that there had
been no incidents during the most recent seven-year period of
his employment. Given the passage of time without incident
and the fact that Vanaria had aged seven years, it is difficult to
conclude that Vanaria’s misconduct with respect to Almaguer
was so obvious that any jury could find causation or deliberate
indifference. No doubt Vanaria was more likely to commit
sexual misdeeds than someone without his checkered history,
but we must recognize that individuals are capable of growth
and not necessarily doomed to a life of recidivism. And given
that Vanaria was fired from his state position in 1998, it is not
implausible to believe that he would have learned from his
errors and decided that another infraction would have caused
his political support to dry up. Almaguer’s argument is more
persuasive with the benefit of 20/20 hindsight, but of course we
must view things from the perspective of the hospital at the
time it hired Vanaria. In 2005, it was far from obvious that he
would engage in sexually inappropriate conduct with a
complete stranger.
Our conclusion is bolstered by a comparison of Vanaria’s
past conduct with the behavior he exhibited toward Almaguer.
Vanaria’s modus operandi had been one of abuse of power. As
a probation officer, he had attempted to trade favorable
probation conditions for sexual favors, and his position of
supervisory power was what made his proposals possible. By
contrast, Vanaria did not exercise any legitimate power over
Almaguer. As detailed above, he was able to entice Almaguer
through a ruse he concocted, but the manner in which he
operated was a sharp deviation from his past misconduct. That
is, even if the county had known about his probation history,
No. 13-1464 13
it could hardly have expected that Vanaria would have
impersonated a human resources employee and lured a
complete stranger into the building. He had no history of such
conduct. In Brown the Supreme Court made clear that it is not
enough that a municipality know an employee would be likely
to violate a plaintiff’s constitutional rights in some kind of
general sense: “a finding of culpability simply cannot depend
on the mere probability that any officer inadequately screened
will inflict any constitutional injury. Rather, it must depend on
a finding that this officer was highly likely to inflict the
particular injury suffered by the plaintiff.” 520 U.S. at 412. In
other words, a plaintiff must connect the dots between the past
conduct and the specific constitutional violation. Vanaria’s past
conduct involved a straightforward abuse of power, whereas
in this case his weapon was not power but trickery and lies.
Although the acts against Almaguer obviously share some
similarities with Vanaria’s past conduct—all incidents involve
bartering for sexual favors—the lengths he went to in order to
dupe Almaguer, someone over whom Vanaria had no legiti-
mate power, do not find a comfortable place within the
predictable arc of his past conduct.
Finally, and relatedly, we believe it is important to consider
the position into which Vanaria was actually placed. Had Cook
County hired Vanaria for a job in which he supervised or
exercised power over large numbers of women, its liability
might be a different story. As noted above, Vanaria’s modus
operandi was to exploit the power the government vested in
him and to leverage that power to obtain sexual favors from
people he supervised. Here, however, the hospital hired him
as an administrative assistant with responsibility for managing
14 No. 13-1464
continuing education for physicians and other staff. As far as
we can tell, Cook County did not vest any power in him: he
had no power over other employees and no official reason to
interact with job seekers like Almaguer, much less exercise
power over them. Until 2007, he had never (so far as anyone
knew) impersonated a human resources employee and created
a phony position of power out of whole cloth in order to trick
unsuspecting citizens. The county did not clothe him in hiring
authority—all it did was give him the same kind of access to an
office, standard business forms, and the like, that presumably
many other white collar hospital employees would have. As
the county’s attorney said during oral argument, Vanaria was
essentially an imposter. Thus, even if some kind of sexual
misconduct would have been predictable had the county
placed Vanaria in a position of power, the county could not
have imagined that Vanaria could have pulled off the scheme
he did while toiling as an administrative assistant with such a
modest portfolio.
In sum, we take the Supreme Court seriously when it
instructs us to be wary of imposing municipal liability in
circumstances like this. “Where a plaintiff presents a § 1983
claim premised upon the inadequacy of an official’s review of
a prospective applicant’s record … there is a particular danger
that a municipality will be held liable for an injury not directly
caused by a deliberate action attributable to the municipality
itself.” Brown, 520 U.S. at 410. Thus, the bar is set high in terms
of both culpability (deliberate indifference) and causation,
whereby a plaintiff must link the hiring decision to the particu-
lar injury alleged. In our view, imposing liability on Cook
County under these facts would substitute conjecture and
No. 13-1464 15
principles of mere negligence for the “rigorous standards of
culpability and causation” the Supreme Court has imposed. Id.
at 405. Simply put, it is too much of a stretch to say that the
county not only should have known Vanaria would commit
various sexual misdeeds, but that he would also invent a
phony position of power that would allow him to violate the
bodily integrity of someone he had no business reason to come
in contact with. See Williams v. Berney, 519 F.3d 1216, 1223 (10th
Cir. 2008) (city license inspector did not violate substantive due
process when assaulting citizen because the use of force was
outside the scope of authority given him by the city).
Our conclusion means two things. First, it means that the
decision to hire Vanaria was not the cause of Almaguer’s injury
in anything but the “but for” sense. Brown, 520 U.S. at 410. It
was not, in other words, the “moving force” behind the injury.
Monell, 436 U.S. at 694. Second, and relatedly, it means that the
county lacked the requisite mental state of deliberate indiffer-
ence. For these reasons, we conclude the substantive due
process claim was properly dismissed.
C. Title VII
Finally, Almaguer alleges that Cook County violated Title
VII, 42 U.S.C. § 2000e, et seq., when it allowed Vanaria to
condition employment at the hospital on acquiescence to his
sexual requests. The district court granted summary judgment
to the county because Almaguer had not established the
existence of any kind of employment relationship, a prerequi-
site to proceeding under Title VII.
Almaguer argues that the district court erred because she
may proceed under Title VII as a prospective employee. That is,
16 No. 13-1464
there need not be an established employer/employee relation-
ship before Title VII is implicated. Almaguer is correct, as far
as that goes. Section 2000e-2(a) states that an employer engages
in unlawful employment practices if it fails or refuses to hire an
individual because of that individual’s race, color, religion, sex
or national origin. 42 U.S.C. § 2000e-2(a). By its own terms,
then, applicants for employment positions are afforded
protection against discriminatory hiring decisions even before
the employment relationship has been established.
But the district court’s decision did not rest on the mere fact
that Almaguer was not a county employee at the time of
Vanaria’s conduct. Instead, the district court seems to have
concluded that there was no employer/employee relationship
at all, whether past, present or prospective. Section 2000e-
2(a)(1), on which Almaguer relies, governs “unlawful employ-
ment practices,” and thus before it is implicated there must be
some kind of “employment” relationship. 42 U.S.C. § 2000e-
2(a)(1). A prospective relationship will suffice: no one doubts
that a prospective employee may bring a Title VII claim if she
alleges she was denied a position on the basis of her sex. But
here the story is much different—in our case, there was no
position of employment at all. Section 2000e-2(a)(1) prevents
the employer from refusing to hire someone because of sex.
42 U.S.C. § 2000e-2(a)(1). Even if Vanaria’s conduct could be
attributed to the employer here, he did not “refuse to hire”
Almaguer for the simple reason that he was wholly unable to
hire her at all. Id. To proceed on a refusal-to-hire claim, a
plaintiff must at a minimum establish that she suffered some
adverse employment action, namely, that she was passed over
for a job. See Rhodes v. Illinois Dep't of Transp., 359 F.3d 498, 504
No. 13-1464 17
(7th Cir. 2004) (“Whether the plaintiff proceeds by the direct or
indirect method of proof, [s]he must show a materially adverse
employment action.”) (citing Haugerud v. Amery Sch. Dist., 259
F.3d 678, 691 (7th Cir. 2001)); Alexander v. Casino Queen, Inc.,
—F.3d —, 2014 WL 57947 (7th Cir. Jan. 8, 2014). When no job
exists, the plaintiff cannot be said to have suffered any adverse
employment action. Jackson v. County of Racine, 474 F.3d 493,
501 (7th Cir. 2007)(“It is important to distinguish between the
real loss of a promotion (a tangible action) and the disappoint-
ment that follows when it turns out that there is no tangible
benefit available at all and that the supervisor has been lying
in order to win sexual favors.”) In short, the county did not
refuse to hire Almaguer because of her sex; it refused to hire
her because there was no position for a massage therapist at
the hospital. It was not hiring anyone.
Accordingly, although we agree with Almaguer that a
plaintiff need not be presently employed by an employer to
invoke Title VII, a plaintiff must at least have been passed over
for a job that actually existed before she can claim an “unlawful
employment practice” has occurred under 42 U.S.C. § 2000e-
2(a)(1).
III.
We cannot, of course, condone the conduct of the Cook
County employee who attempted to secure sexual favors in
exchange for a job that didn’t exist. Nor do we believe that
Cook County’s method of filling positions through patronage
is a model worthy of the civics books. Yet neither can we find
that Vanaria’s conduct is attributable to his employer, the
county. Nor can we find the requisite employment relationship
18 No. 13-1464
required by Title VII. Accordingly, the judgment of the district
court is affirmed.