Almaguer v. Cook County et al

Filing 180

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 9/27/2012:Mailed notice(rth, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRYSTAL ALMAGUER,

)
)
) Case No. 08 C 587
)
) Judge Sharon Johnson Coleman
)
)
)
)
)
)

Plaintiff,

v.
COOK COUNTY,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Krystal Almaguer (“Plaintiff” or “Almaguer”)1, a resident of Cook
County, brings forth this matter against Defendant Cook County (“Defendant” or “Cook
County”), a municipal corporation, alleging: (1) sexual harassment and gender
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C § 2000e et seq. (“Title VII”) (Count I); (2) violations of her equal protection and
due process rights under the Fourteenth Amendment pursuant to 42 U.S.C § 1983
(“Section 1983” or “§ 1983”) (Counts II and III); and (3) violations of Illinois law for the
intentional infliction of emotional distress (Count IV), assault and battery (Count V),
respondeat superior (Count VI), and willful and wanton misconduct (Count VII).
Defendant moves for summary judgment on all claims pursuant to Fed. R. Civ. P. 56 and
Local Rule 56.1. For the foregoing reasons, Defendant’s motion for summary judgment
is granted in part and denied in part.
Background
The following facts are taken from the pleadings, the discovery and disclosure
materials on file, and affidavits. All inferences have been drawn in favor of the nonmovant, Plaintiff Almaguer. Defendant Felice Vanaria (“Vanaria”) was employed from
1

Plaintiff currently named Krystal W ilson, was formerly named Krystal Almaguer at the initial filing of the
complaint. (Compl. ¶ 1). For purposes of this opinion and consistency, Plaintiff is hereinafter, referred to
as “Almaguer.”

1

1984 through 1998 with the Cook County Adult Probation Department.2 (Pl.’s Resp. to
Def.’s Rule 56 Stmt. at ¶ 5). In 1998, after an investigation, Vanaria was terminated.
(Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶¶ 8-17). During his employment with the Cook
County Adult Probation Department, in 1995 and 1998, two probationers lodged
complaints against Vanaria for demanding sexual favors in exchange for more lenient
probation conditions. In addition to these two complaints, sexually inappropriate letters
between Vanaria and a third probationer were intercepted by the Cook County Adult
Probation Department.3 (Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶¶ 9-10). In 2002,
Vanaria worked for Defendant as an administrative assistant assigned to Cook County
Commissioner Joseph Moreno. (Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶ 19). On July 26,
2002, Vanaria’s fingerprints were taken in order to check Vanaria’s criminal background.
(Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶ 20). Subsequently, in 2005, Vanaria was hired
by Defendant as the Administrative Assistant III at Oak Forest Hospital. (Pl.’s Resp. to
Def.’s Rule 56 Stmt. at ¶29). On January 5, 2005, Vanaria’s fingerprints were taken
before he started to work at Oak Forest Hospital.
In his position as an Administrative Assistant III at Oak Forest Hospital, Vanaria
worked as a Continuing Medical Education (“CME”) Coordinator. (Pl.’s Resp. to Def.’s
Rule 56 Stmt. at ¶ 35). Vanaria’s main responsibility as a CME Coordinator was to
schedule and coordinate programs for the medical staff. (Pl.’s Resp. to Def.’s Rule 56
Stmt. at ¶ 36). A pharmaceutical representative complained to Vanaria’s direct
2

The parties dispute whether Cook County, as a municipal entity, is responsible for the Cook County Adult
Probation Department. Plaintiff contends that Cook County is responsible for Vanaria’s actions as an
employee of the Adult Probation Department. (Pl.’s Mem. in Opp’n to Def.’s MSJ at 5). Defendant argues
that Plaintiff conflates Cook County with the Cook County Adult Probation Department. Defendant
contends that the Cook County Adult Probation Department is a unit of the Circuit Court of Cook County
and that Cook County “is not accountable for knowledge or events of a separate legal entity.” (Def.’s
Reply in Supp. of MSJ at 2). Accordingly, Defendant contends that “any conclusions or facts asserted [that
conflate Cook County with the Cook County Adult Probation Department] by the Plaintiff should be
disregarded in considering the instant motion for summary judgment against Cook County.” (Def.’s Reply
in Supp. of MSJ at 2). The Court finds Defendant’s argument unpersuasive given the fact that the Cook
County Adult Probation Department is usually represented by the Cook County State’s Attorney’s Office.
It is untenable that Cook County would continuously represent the Cook County Adult Probation
Department in litigation, an alleged “separate legal entity,” when it had no responsibility over the Cook
County Adult Probation Department. However, this Court need not address the merits of Defendant’s
argument in depth as we resolve all ambiguities and draw all inferences in favor of the nonmoving party for
purposes of this motion for summary judgment.
3
The parties dispute whether the allegations from the 1995 investigation were “fully investigated” or
whether there was enough evidence to show that what was alleged actually took place. (Pl.’s Resp. to
Def.’s Rule 56 Stmt. at ¶¶ 9-10).

2

supervisor that in exchange for setting up a CME speaker program at Oak Forest
Hospital, Vanaria had demanded a massage from the representative. (Pl.’s Resp. to
Def.’s Rule 56 Stmt. at ¶ 44). Vanaria’s supervisor subsequently reported the complaint
and after an investigation, it was determined that there was not enough evidence to
sustain the allegations against Vanaria.4 As a result of the investigation, Vanaria
received verbal counseling and was prohibited from further contact with the
pharmaceutical representative who lodged the complaint. (Pl.’s Resp. to Def.’s Rule 56
Stmt. at ¶ 48-49). This was the only documented complaint against Vanaria during his
employment at Oak Forest Hospital. (Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶ 50-51).
Vanaria’s position did not give him the authority to hire individuals, nor did he
have the authority to offer anyone a position of employment at Oak Forest Hospital, nor
did he have the authority to make recommendations to human resources at Oak Forest
Hospital for either the hiring or termination of an individual.5 (Pl.’s Resp. to Def.’s Rule
56 Stmt. at ¶ 37). Plaintiff Almaguer is a professional massage therapist. (Pl.’s Stmt. of
Additional Facts at ¶1; Almaguer Dep. Tr. 7:1-24). As part of her job, Almaguer would
travel to perform massages on clients at their homes. (Almaguer Dep. 25:17-19). One of
her clients referred Vanaria to Almaguer for a massage. (Almaguer Dep. 25:13-16). On
or about January 25, 2007, Almaguer received a phone call from Vanaria asking what
massage services she provided and if she had any flyers which he could pass out at Oak
Forest Hospital. (Almaguer Dep. 27:2-6). Almaguer asked if the hospital was hiring and
made an appointment to submit her resume to Vanaria. (Almaguer Dep. 27:7-12; Compl.
at ¶ 27). Vanaria interviewed Almaguer at the hospital and offered her a position.
(Compl. at ¶ 28). Vanaria told Plaintiff that her salary would be $52,000 per year and
that she would receive full benefits, vacation, personal days and sick days. (Compl. at ¶
28). Vanaria also informed Almaguer that she needed to complete an application, be
fingerprinted and consent to drug screening. (Compl. at ¶ 28). Almaguer completed the

4

Again, the parties dispute whether the investigation was in fact a “full investigation” and whether or not
there was enough evidence to sustain the allegations against Vanaria. (Pl.’s Resp. to Def.’s Rule 56 Stmt.
at ¶ 46-47); see also supra note 3.
5
Plaintiff admits that Vanaria did not have any actual authority to hire individuals, but argues that by virtue
of his status as a Cook County employee, Vanaria had some authority to make recommendations to human
resources at Oak Forest Hospital for the hiring of an individual. (Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶
37).

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application form and gave her consent for a background check before leaving the
hospital. (Compl. at ¶ 29).
Pursuant to Vanaria’s request for her social security card and birth certificate,
Almaguer returned to Vanaria’s office on February 1, 2007. (Compl. at ¶ 31). Upon her
arrival, Vanaria shut the door and proceeded to make certain sexual requests of her in
exchange for her employment with the hospital including a kiss, removal of her clothing,
and a massage “with [Almaguer] wearing something sexy.” (Compl. at ¶¶ 32-36).
Almaguer states that she thought Vanaria’s demands were a condition of her
employment, and therefore, she undressed as requested. (Compl. at ¶ 36). After she
complied, Vanaria then squeezed Almaguer’s buttocks and kissed her on her mouth and
neck. (Compl. at ¶¶ 32-36). Almaguer eventually pulled away from Vanaria’s advances
and got dressed. Once dressed, Vanaria took Almaguer to the Rehabilitation Department
in the hospital and explained that it was where she would be working. (Compl. at ¶¶ 3638). Shortly thereafter, Almaguer telephoned Vanaria and explained that she was
uncomfortable with their last interaction and declined the position with the hospital.
(Compl. at ¶¶ 39-40).
On February 5, 2007, Almaguer was contacted by Vanaria who offered her
another position at the hospital. (Compl. at ¶ 41). Almaguer expressed interest in the
position on the condition that she did not have to submit to sexual demands in order to
receive the job. (Compl. at ¶ 41). On February 12, 2007, Vanaria called Almaguer again
and affirmed that as a condition of employment, she would still have to give him a
massage while wearing something sexy. (Compl. at ¶ 42). Almaguer states that she
reluctantly scheduled a massage appointment with Vanaria for Thursday, February 15,
2007 at her home. (Compl. at ¶ 42).
On or about February 15, 2007, Vanaria arrived at Almaguer’s home massage
studio for his scheduled massage with employment paperwork for Almaguer to sign.
(Compl. at ¶ 43). Vanaria got undressed and Almaguer states that at Vanaria’s direction,
she got undressed and began to give Vanaria a massage. (Compl. at ¶ 43). During the
massage Vanaria told her that he had previously conditioned employment in exchange for
sexual demands with ten other women prior to Almaguer. (Compl. at ¶ 43). During the
massage, Vanaria turned to face Almaguer, pulled her towards him, and touched her in a
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sexual manner. (Compl. at ¶ 44). Vanaria, upset with Almaguer for her reluctance to
engage in further sexual activity, explained to her that he would not give her the
employment papers unless she performed manual stimulation on him. (Compl. at ¶ 44).
Almaguer complied with Vanaria’s request and was eventually given the employment
papers. (Compl. at ¶ 44). Almaguer signed the papers and Vanaria left her home.
(Compl. at ¶ 44).
On or about February 22, 2007 Almaguer received a phone call from a woman
who explained that she was calling from the Human Resources Department at Oak Forest
Hospital to confirm that Almaguer’s start date was March 5, 2007. (Compl. at ¶ 46).
The woman explained that the job title had been changed to “Therapist” and that
Almaguer needed to set up another appointment with Vanaria to complete a new
application. (Compl. at ¶ 46). Almaguer subsequently called Vanaria and inquired about
the change in job title. (Compl. at ¶ 47). Vanaria explained that the Therapist position
paid $10,000 more a year and that Almaguer owed him another massage for the job.
(Compl. at ¶ 47). Vanaria said that he would bring the new job application with him
when he was to receive his second massage. (Compl. at ¶ 47).
Immediately thereafter, Almaguer called Oak Forest Hospital’s Human Resources
Department and explained that she had been offered a position with the hospital.
(Compl. at ¶ 48). Almaguer was informed, however, that Oak Forest Hospital was not
hiring or accepting employment applications. (Compl. at ¶ 48). Upon learning this
information, Almaguer contacted Orland Park Police Department. (Compl. at ¶ 49).
Vanaria was placed on unpaid administrative leave after being arrested by the Orland
Park Police. (Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶ 33). Vanaria never returned to
work at Oak Forest Hospital after placed on leave and his final day of employment was
on March 30, 2007. (Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶ 34). Vanaria eventually
pled guilty to one count of bribery and one count of official misconduct.6 (Compl. at ¶
51). Almaguer now brings forth several claims against Cook County alleging that as
Vanaria’s employer, Cook County is liable for Vanaria’s misconduct. (Compl. at ¶¶ 54-

6

On July 26, 2007, Vanaria pled guilty to official misconduct and bribery. As a result, Vanaria pled guilty
to many of the underlying allegations made by Almaguer. Vanaria was sentenced to thirty months of sex
offender probation and does not contest the sexual allegations raised in this instant matter. (Vanaria Tr.
61:23-62:10).

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71). Specifically, Almaguer filed a complaint against Defendant, Cook County alleging:
(1) sexual harassment and gender discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C § 2000e et seq. (“Title VII”) (Count I); (2)
violations of her equal protection and due process rights under the Fourteenth
Amendment pursuant to 42 U.S.C § 1983 (Counts II and III); and (3) violations of
Illinois law for the intentional infliction of emotional distress (Count IV), assault and
battery (Count V), respondeat superior (Count VI), and willful and wanton misconduct
(Count VII). (Compl. at ¶¶ 72-132).
Legal Standard
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c)(2). The burden is upon the moving party to demonstrate that no genuine
issue respecting any material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). In determining whether a genuine issue of material fact exists, all ambiguities
must be resolved and all inferences drawn in favor of the nonmoving party. Abdullahi v.
City of Madison, 423, F.3d 763, 773 (7th Cir. 2005). Summary judgment is improper in a
discrimination case where a material issue involves any weighing of conflicting
indications of motive and intent. Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th
Cir. 1985).
Discussion
1. Title VII: Sexual Harassment & Gender Discrimination Claims
Defendant argues that Plaintiff’s Title VII claims fail because there was no
employer/employee relationship between Almaguer and Cook County. (Def.’s MSJ at
2). In response, Plaintiff proffers a quid pro quo sexual harassment argument and
contends that in such cases, no employer/employee relationship is required. (Pl.’s Mem.
Law in Opp’n to Def.’s MSJ at 9).
It is well-established that to bring an action pursuant to Title VII for alleged
unlawful employment practices, a plaintiff must prove the existence of an employment
relationship. See Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 380 (7th
Cir. 1991); see also Levin v. Madigan, No. 07 C 4765, 2011 U.S. Dist. LEXIS 74475, at
6

*24 (N.D. Ill. July 12, 2011). Title VII provides a broad definition of the term
“employee”:
The term ‘employee’ means an individual employed by an employer,
except that the term ‘employee’ shall not include any person elected to
public office in any State or political subdivision of any State by the
qualified voters thereof, or any person chosen by such officer to be on
such officer’s personal staff, or an appointee on the policy making level or
an immediate adviser with respect to the exercise of the constitutional or
legal powers of the office.
42 USCS § 2000e(f); see also Knight, 950 F.2d at 380. In determining whether a
business relationship is one of employee/employer, courts look to the economic realities
of the relationship and the degree of control the employer exercises over the alleged
employee. See Knight, 950 F.2d at 380. “Independent contractors are not employees for
Title VII purposes” and “the employment relationship must be affirmatively
demonstrated in order to maintain a Title VII claim.” See Van Ratliff v. Christ Hosp. &
Med. Ctr., No. 96 C 4916, 1997 U.S. Dist. LEXIS 13586, at *18 (N.D. Ill. Aug. 28,
1997).
As a threshold matter, Defendant argues that Plaintiff’s Title VII claims must be
dismissed “where there existed no employer/employee relationship between Plaintiff and
Cook County and where Cook County did not deprive Plaintiff of any tangible
employment benefit.” (Def.’s MSJ at 2). Additionally, Defendant argues that because
Vanaria had no power to interview, hire or offer employment to anyone at Oak Forest
Hospital, Plaintiff was never denied any tangible benefits. (Def.’s MSJ at 3). Moreover,
Defendant argues that because the two positions that Plaintiff thought she was
interviewing for were not available at Oak Forest Hospital, Plaintiff’s Title VII claims
must be dismissed. (Def.’s MSJ at 3-4).
Plaintiff does not dispute that there existed no employer/employee relationship.
Instead, Plaintiff argues that since her Title VII claims are premised on a theory of quid
pro quo sexual harassment, Defendant’s arguments are all inapplicable. (Pl.’s Mem. Law
in Opp’n to Def.’s MSJ. at 9). Plaintiff contends that quid pro quo sexual harassment
claims are not subject to the employer/employee requirement for Title VII claims. In
support of this argument Plaintiff cites Burlington Indus., Inc v. Ellerth, 524 U.S. 742
(1998), Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Meritor Savings Bank,
7

FSV v. Vinson, 477 U.S. 57 (1986) for the proposition that agency principles are
applicable to the case at hand. Accordingly, Plaintiff argues that “under agency
principals [sic] approved by the Supreme Court in analyzing sexual harassment claims,
Defendant is liable for Vanaria’s conduct.” (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at
10). Indeed, the Plaintiff cites cases in which the court turns to agency principles for
Title VII interprets the term “employer” to include “agents.” Burlington, 524 U.S. at
742. However, these cases do not address the threshold question of whether the Plaintiff
here meets the requisite employment relationship in order to bring a Title VII action.
Those cases sought to discern the scope of vicarious liability within the context of an
employment relationship. Here, despite Vanaria’s outrageous conduct, the Plaintiff
cannot meet the requisite employment relationship nor does she attempt to claim such
relationship exists. The record is bereft of any material facts that demonstrate any
economic realities of an employer/employee relationship or any degree of control
exercised by Vanaria over Plaintiff as an alleged employee. Accordingly, Defendant’s
motion for summary judgment regarding Plaintiff’s Title VII claims is granted due to
Plaintiff’s failure to establish an employer/employee relationship. Therefore, the Court
need not address the merits of Plaintiff’s quid pro quo sexual harassment claim.
2. Section 1983 Claims
Section 1983 actions require a two-part showing. “A party wishing to assert a
claim based on § 1983 must allege [1] ‘the violation of a right secured by the
Constitution and laws of the United States, and [2] must show that the alleged
deprivation was committed by a person acting under color of state law.’” Trautvetter v.
Quick, 916 F.2d 1140, 1148 (7th Cir. 1990)(citing West v. Atkins, 487 U.S. 42 (1988)).
Defendant argues primarily that Plaintiff’s Section 1983 claims fail because
Plaintiff cannot establish that Vanaria was acting under color of law. (Def.’s MSJ at 78). Defendant contends that because “the allegations against Vanaria which give rise to
Plaintiff’s action against the County were not related to the duties and powers incidental
to Vanaria’s position at Oak Forest Hospital,” his alleged conduct “bore no relation to
any state powers assigned to him by the County” and therefore could not have occurred
under color of law as is required to sustain a §1983 action. (Def.’s MSJ at 6-7).

8

A conclusion that an individual state employee did not act under color of state law
does not allow for summary judgment on a municipal liability claim. Gibson, 910 F.2d
at 1519; see also Garcia v. City of Chicago, 2003 U.S. Dist. LEXIS 5655 (N.D. Ill. Apr.
7, 2003) (noting the difference between a conclusion that an individual defendant was not
acting under color of state law and a plaintiff’s claim against a city for municipal
liability). Indeed, “section 1983 provides a remedy against ‘any person’ who, under
color of state law, deprives another of rights protected by the Constitution. Garcia, 2003
U.S. Dist. LEXIS 5655, at *4. In Monell v. Dept. of Social Services of the City of New
York, 436 U.S. 658 (1978), the Supreme Court held that Congress intended municipalities
and other local government entities, such as the City, to be included among those
“persons” to whom § 1983 applies. Id. Therefore, a claim against an individual
defendant and a claim against a municipality are two separate and discrete § 1983 claims.
“On a municipal liability claim, the municipality itself is the state actor and its action in
maintaining the alleged policy at issue supplies the ‘color of law’ requirement under §
1983.” Gibson, 910 F.2d at 1519.
In response to Defendant’s motion, Plaintiff asserts that her § 1983 claims do not
require that she prove Vanaria acted under color of law. (Pl.’s Mem. Law in Opp’n to
Def.’s MSJ at 8). Indeed, whether or not Vanaria acted under color of law is inapposite
to Plaintiff’s municipal liability claim. See Garcia, 2003 U.S. Dist. LEXIS 5655, at *56. Here, Plaintiff alleges that Defendant has a municipal policy of failing to verify the
employment references and background of a political hire. This is sufficient to meet the
“under color of law” requirement for a municipal defendant pursuant to Section 1983.
Having established that Plaintiff properly asserts that her alleged deprivation was
committed by a “person” acting under color of state law, the next relevant inquiry is
whether Plaintiff has suffered a constitutional injury. Here, Plaintiff alleges
constitutional injuries in violation of (1) her equal protection right to be free from sexual
harassment and gender discrimination and (2) her due process right to personal integrity
and liberty (Compl. ¶¶ 87, 93).
Focusing on the Constitutional violation requirement, Defendant argues that
Plaintiff fails to show that she was subject to gender discrimination for purposes of her
equal protection claims. (Def.’s MSJ at 8). Defendant contends that Plaintiff cannot
9

show a widespread Cook County practice, custom or policy caused the injury alleged
through the Defendant’s deliberate conduct. (Def.’s MSJ at 9). Plaintiff responds that
evidence of a single act of sexual harassment can trigger municipal liability if the
violation was a highly predictable consequence of the municipality’s failure to act. (Pl.’s
Mem. Law in Opp’n to Def.’s MSJ at 15).
Sexual harassment by a state employer constitutes sex discrimination for purposes
of the equal protection clause. See Bohen v. East Chicago, 799 F.2d 1180, 1185 (7th Cir.
1986). “[A] plaintiff wishing to sustain an equal protection claim of sexual harassment
must show both ‘sexual harassment’ and an ‘intent’ to harass based upon that plaintiff’s
membership in a particular class of citizens.” Trautvetter, 916 F.2d at 1149. A plaintiff
can make an ultimate showing of sex discrimination either by showing the employer’s
actions or policy 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. See Bohen, 799
F.2d at 1187 (citing Meritor, 477 U.S. at 57).
Here, Defendant argues that Plaintiff’s equal protection claims fail because
Almaguer does not present sufficient evidence of a widespread policy of failing to
adequately address sexual harassment complaints. (Def.’s MSJ at 9). Defendant argues
that Plaintiff must establish that a widespread practice, custom or policy caused injury
and that the municipality through its deliberate conduct was the moving force behind that
alleged injury. (Def.’s MSJ at 9). Defendant contends that Plaintiff fails to show that
Cook County was aware of a substantial risk, failed to take appropriate steps to protect
Plaintiff from the known danger, or a pattern of constitutional violations. (Def.’s MSJ at
9-10).
Plaintiff argues that “there is sufficient evidence for a reasonable jury to conclude
that Defendant had a custom and practice of failing to adequately respond to complaints
of sexual harassment.” (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at 15). Plaintiff alleges
that Defendant engaged in a custom and practice of condoning sexual harassment and
that practices implemented by policy makers allowed Vanaria to sexually assault
Plaintiff. (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at 15). Plaintiff contends further that
Defendant failed to adequately address complaints of sexual harassment, failed to
10

properly supervise the Defendant, and failed to provide proper training to its managers,
supervisors and employees to prevent sexual harassment. (Compl. at ¶¶ 84-86; Pl.’s
Mem. Law in Opp’n to Def.’s MSJ at 15-16).
Viewing the facts in the light most favorable to the non-movant Plaintiff, a
material issue of fact exists as to whether Vanaria’s misconduct was a highly predictable
consequence of Cook County’s alleged failure to adequately respond to sexual
harassment complaints against Vanaria. Prior to the facts alleged in this instant action,
three complaints were made against Vanaria for misuse of his employment status to gain
sexual favors. Additionally there was another incident where Vanaria exchanged
sexually inappropriate letters with a probationer. Although all these incidents were
investigated and resulted in a finding that there was not enough evidence to sustain the
allegations against Vanaria, the parties dispute the adequacy of those investigations and
findings. These incidents demonstrate that Cook County responded to complaints of
sexual harassment once they were made, but continued to hire Vanaria in public service
situations. Accordingly, a material issue of fact exists as to Plaintiff’s Section 1983
equal protection claim.
Defendant next argues that summary judgment should be granted regarding
Plaintiff’s § 1983 due process claims because Almaguer fails to demonstrate that Cook
County was deliberately indifferent in its hiring practices. Plaintiff responds that Cook
County’s failure to properly screen applicants prior to hiring has caused a pattern of
violations such that a jury could find that the Cook County was deliberately indifferent to
the risks resulting from this practice.
To satisfy the second element in a § 1983 action (alleging a violation of a right
secured by the Constitution and laws of the United States) based on due process, the
plaintiff must demonstrate: (1) that the claimed interest is a protected property or liberty
interest under the fourteenth amendment; (2) that the alleged loss amounted to a
deprivation; and (3) that the deprivation was without due process of law. Polenz v.
Parrott, 883 F.2d 551, 555 (7th Cir. 1989). Accordingly, “a plaintiff seeking to establish
municipal liability on the theory that a facially lawful municipal action has led an
employee to violate a plaintiff's rights must demonstrate that the municipal action was

11

taken with ‘deliberate indifference’ as to its known or obvious consequences” and “a
showing of simple or even heightened negligence will not suffice.” Id. at 406-407.
Cook County argues that prior to hiring Vanaria, his fingerprints were taken, as
they were for all employees with Cook County, and checked at random to determine
criminal backgrounds. (Def.’s MSJ at 13). Further, Cook County verified Vanaria’s
previous employment with Commissioner Moreno. (Def.’s MSJ at 13). Defendant
concedes that because Vanaria was a “Shankman” exempt employee, any further
checking was to be done by the Department that hired him. (Def.’s MSJ at 14).
Defendant does not provide any information as to any additional background checks done
on Vanaria, but nevertheless argues that this hiring process does not support an inference
that Cook County was deliberately indifferent to the likelihood that Vanaria could violate
Almaguer’s constitutional rights. (Def.’s MSJ at 14).
Because Almaguer does not allege that Cook County directly violated any federal
law, or directed or authorized the deprivation of federal rights, Almaguer must
demonstrate that Cook County’s action was done with “deliberate indifference” as to its
known or obvious consequences. Brown, 520 U.S. at 409. Almaguer argues that Cook
County’s failure to properly screen applicants prior to hiring has caused a pattern of
violations such that a jury could find that the Cook County was deliberately indifferent to
the risks resulting from this practice. (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at 3). In
support, Plaintiff alleges that the failure to check Vanaria’s criminal background, Cook
County’s failure to investigate Vanaria’s past sexual misconduct and termination from
Cook County Adult Probation, deposition statements that suggest indifference to whether
political hires had a criminal background, and Cook County’s general policy of failing to
undertake more substantive background checks for “political hires” amount to deliberate
indifference to an obvious risk. (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at 4).
Cook County argues that while their hiring process may demonstrate possible
negligent hiring practices, it does not amount to deliberate indifference of Almaguer’s
constitutional rights. (Def.’s MSJ at 15). Defendant argues that even if its alleged
inadequate scrutiny of Vanaria’s background rendered Vanaria’s misconduct more likely
to occur, it does not mean that Vanaria’s conduct was a foreseeable consequence of Cook
County’s actions. See Brown, 520 U.S. at 410-411. However, here, Almaguer’s
12

allegations are not based on a single act of negligent conduct, such as one person failing
to check one reference, but instead Almaguer alleges repeated insufficient or negligent
practices that should have been in place to prevent employees similar to Vanaria from
obtaining his position and having the opportunity to commit the unlawful acts alleged
herein. See Woodard, 368 F.3d 917, 929. Plaintiff’s allegation suggests that Vanaria’s
background demonstrated an obvious likelihood that he would engage in the sexual
misconduct alleged in this matter. (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at 3-4).
Further, Almaguer has presented statements that suggest that Cook County supervisors
were deliberately indifferent to these risks. (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at
4; Moreno Dep. at 82:3-85:2). Therefore, Plaintiff has presented a factual question as to
whether Cook County’s hiring procedures demonstrate a deliberate indifference to
Vanaria’s foreseeable sexual misconduct.
Accordingly, Defendant’s motion for summary judgment regarding Plaintiff’s
Section 1983 claim for violations of her due process right to personal integrity and liberty
is denied. Defendant’s motion for summary judgment regarding Plaintiff’s § 1983 equal
protection claim is denied.
3. State Law Claims
Defendant argues that summary judgment should be granted concerning all
Almaguer’s state claims because Cook County cannot be held liable for Vanaria’s actions
that were outside the scope of his employment. (Def.’s MSJ at 18). Plaintiff contends
that Cook County waived any argument that summary judgment should be granted
regarding Plaintiff’s assault and battery (Count V) and willful and wanton misconduct
(Count VII) claims.7 Plaintiff contends that with regards to Almaguer’s emotional
distress (Count IV) and respondeat superior (Count VI) claims, whether or not Vanaria’s
actions were outside the scope of his employment is a question for the jury.
An employer may be liable for the torts of its employees if the tort is committed
within the scope of the employment. For conduct to be considered within the scope of
one’s employment the conduct must: (1) be of the kind the employee is employed to
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Although it is unclear in her briefing, Plaintiff appears to allege that Defendant’s failure to respond to
Count V (assault and battery) and Count VII (willful and wanton misconduct) results in waiver of summary
judgment regarding those claims. (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at 2, 18). In fact, Defendant
responded to all Plaintiff’s state law claims at pages 18-20 of its Motion for Summary Judgment.
Accordingly, this court need not address Plaintiff’s waiver argument.

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perform; (2) occur substantially within the authorized time and space limits; and (3) be
performed, at least in part, by purpose to serve the master. See Krause, 571 F. Supp. 2d
at 864. When the motive for the employee’s tort is personal and solely for the benefit of
the employee, the employer is not subject to liability. Id.
In this case, Vanaria held the position of Adminstrative Assistant III as an
employee of Oak Forest Hospital. In this position, he had no power to hire or interview
anyone for a position with the hospital. (Pl.’s Resp. to Def.’s Rule 56 Stmt. at ¶ 37).
While some of the events complained of occurred during authorized time and space
limits of Vanaria’s employment, the alleged culpable conduct was performed well
outside of Vanaria’s duties at the Hospital. Therefore, Cook County cannot be held liable
for Vanaria’s tortious acts under Illinois law.
Almaguer argues however that under agency principles, Cook County can be held
liable for Vanaria’s conduct even if it was committed outside the scope of his
employment. Citing Ellerth, Almaguer argues that employers can be held liable “where
the servant purported to act or to speak on behalf of the principal and there was reliance
upon apparent authority, or he was aided in accomplishing the tort by the existence of the
agency relationship.” (Pl.’s Mem. Law in Opp’n to Def.’s MSJ at 18-19); see also
Ellerth, 524 U.S. at 58 (quoting Restatement (2d) of Agency § 219(2)(d)). However,
Ellerth goes on to say that Section 219(2)(d) of the Restatement provides no basis
whatsoever for imposing vicarious liability on an employer for sexual harassment claims.
The Supreme Court explained that “liability under § 219(2)(d) depends upon the
plaintiff’s belief that the agent acted in the ordinary course of business or within the
scope of his apparent authority. However, in this day and age, no sexually harassed
employee can reasonably believe that a harassing supervisor is conducting the official
business of the company or acting on its behalf. Indeed, the Court admits as much in
demonstrating why sexual harassment is not committed within the scope of a
supervisor’s employment and is not part of his apparent authority.”
Accordingly, Almaguer’s reliance on Ellerth to impose liability on the Defendant
for Vanaria’s conduct, performed outside the scope of his employment, is unpersuasive.
Plaintiff’s motion for summary judgment regarding Plaintiff’s state law claims against
Cook County is granted.
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Conclusion
Defendants’ motion for summary judgment is denied in part and granted in
part. Defendant’s motion for summary judgment regarding Plaintiff’s Title VII
claims (Count I) and state law supplemental claims (Count IV, V, VI, VII) is
granted. Defendant’s motion for summary judgment regarding Plaintiff’s Section
1983 equal protection (Count II) and due process claims (Count III) is denied.

It is so ordered.

September 27, 2012
______________________
Hon. Sharon Johnson Coleman
United States District Court

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