Vargas v. Lake County, Indiana et al
Filing
76
OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Sheriff Defendants' motion for summary judgment 56 is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to (1) all claims against John Buncich; (2) the Tit le VII claims of sex discrimination, disparate impact, disparate treatment, training, and promotion in Count I; and (3) Counts II-VI against the Lake County Police Department. These claims are DISMISSED. The motion is DENIED as to the Title VII claims of hostile work environment and retaliation against the Lake County Police Department in Count I. Woronkas motion for summary judgment 61 is GRANTED. Counts I-VI against Woronkaare DISMISSED. Signed by Judge Rudy Lozano on 9/27/2017. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JESSE VARGAS,
Plaintiff,
vs.
LAKE COUNTY POLICE DEPARTMENT;
SHERIFF JOHN BUNCICH, solely in
his official capacity as Lake
County Sheriff; HENRY WORONKA,
individually and in his official
capacity,
Defendants.
)
)
)
)
)
) NO. 2:14–CV-288
)
)
)
)
)
)
)
)
)
OPINION AND ORDER
This matter is before the Court on the Sheriff Defendants’
Motion for Summary Judgment, filed by Defendants Lake County Police
Department and Sheriff John Buncich in his capacity as Lake County
Sheriff (together, “Sheriff Defendants”), on January 26, 2017 (DE
#56), and on Defendants’ Motion for Summary Judgment, filed by
Defendant Henry Woronka (“Woronka”), on January 30, 2017 (DE #61).
For the reasons set forth below, the Sheriff Defendants’ motion
for summary judgment (DE #56) is GRANTED IN PART and DENIED IN
PART.
The motion is GRANTED as to: (1) all claims against John
Buncich; (2) the Title VII claims of sex discrimination, disparate
impact, disparate treatment, training, and promotion in Count I;
and (3) Counts II-VI against the Lake County Police Department.
1
These claims are DISMISSED.
The motion is DENIED as to the Title
VII claims of hostile work environment and retaliation against the
Lake County Police Department in Count I.
summary judgment (DE #61) is GRANTED.
Woronka’s motion for
Counts I-VI against Woronka
are DISMISSED.
BACKGROUND
Plaintiff Jesse Vargas (“Vargas”) is a Latino police officer
employed
by
Department”).
the
Lake
On
County
August
20,
Sheriff’s
2012,
Department
defendant
(“Sheriff’s
police
officer
Commander Woronka called Vargas a “fat Tomato Picker” and insulted
him while in the patrol sergeant’s office.
Their conversation
escalated to a physical altercation that was broken up by other
officers. Vargas filed an internal complaint against Woronka about
this altercation, indicating that Woronka had been harassing him
on a daily basis, calling him “Beaner, Puerto Rican, Bean counter
or Field worker.”
In response to Vargas’ complaint, defendant
Sheriff John Buncich (“Buncich”) demoted Woronka from his rank of
Commander and suspended him without pay for fifteen days.
Woronka
resigned from the Sheriff’s Department soon thereafter.
Vargas
filed an EEOC Charge of Discrimination against the Sheriff’s
Department regarding Woronka’s harassment and the altercation,
asserting claims of discrimination based on his race, color,
national origin, and retaliation.
2
After filing the internal
complaint and EEOC Charge, Vargas repeatedly requested promotion
to the rank of corporal, but was not promoted.
Vargas’ Amended Complaint (“Complaint”) alleges violations of
Title VII of the Civil Rights Act of 1964, as amended by the Civil
Rights Act of 1991, 42 U.S.C. § 2000e-2 (Count I); violations of
42 U.S.C. § 1981, including retaliation under Section 1981 (Count
II); failure to train under Section 1981 (Count III); violations
of 42 U.S.C. § 1983 (Count IV); failure to train resulting in
violations of Section 1983 (Count V); and violation of Article I,
Section 23 of the Indiana Constitution (Count VI).
(DE #58-1.)
On January 27, 2017, upon stipulation of the parties, the Court
dismissed the claims against Woronka in his official capacity.
(DE #60.)
The Sheriff Defendants and Woronka filed motions for
summary judgment.
These motions have been fully briefed and are
ripe for adjudication.
DISCUSSION
Standard
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986).
Not every dispute between the
3
parties makes summary judgment inappropriate; “[o]nly disputes
over facts that might affect the outcome of the suit under the
governing
law
judgment.”
will
Id.
properly
preclude
the
entry
of
summary
In determining whether summary judgment is
appropriate, the court must construe all facts in the light most
favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.
Cir. 2010).
Ogden v. Atterholt, 606 F.3d 355, 358 (7th
“However, our favor toward the nonmoving party does
not extend to drawing inferences that are supported by only
speculation or conjecture.”
Fitzgerald v. Santoro, 707 F.3d 725,
730 (7th Cir. 2013) (citation omitted).
While the movant bears the initial burden of production to
inform the district court why a trial is not necessary, these
requirements “are not onerous” where the nonmovant “bears the
ultimate burden of persuasion on a particular issue.”
v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013).
Modrowski
A party may move
for summary judgment based on either “affirmative evidence that
negates an essential element of the nonmoving party’s claim” or by
“asserting that the nonmoving party’s evidence [is] insufficient
to establish an essential element of the nonmoving party’s claim.”
Id. at 1169 (citation and internal quotations omitted).
A party
opposing a properly supported summary judgment motion may not rely
on allegations or denials in his own pleading, but rather, must
“marshal and present the court with the evidence [he] contends
4
will prove [his] case.”
Goodman v. Nat'l Sec. Agency, Inc., 621
F.3d 651, 654 (7th Cir. 2010).
If the nonmoving party fails to
establish the existence of an essential element on which he bears
the burden of proof at trial, summary judgment is proper.
Massey
v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Material Facts
The Parties
Vargas
is
a
police
Department since 1996.1
origin.
officer
employed
by
the
Sheriff’s
His race is Mexican and of Hispanic
During the time period at issue, Vargas was assigned to
the Patrol Division.
Buncich served his first term as Sheriff of
Lake County from 1995 to 2002.
He began his second term as Sheriff
in 2011, and served in that position during the time period at
issue.
As Sheriff, Buncich had exclusive authority to appoint
commanders and deputy commanders, and was the final decision-maker
on promotions, discipline, and transfer of assignments for Vargas.
The Court notes that while “Lake County Police Department” is
named as a defendant and Vargas’ employer in the Complaint (DE
#58-1 at 2, ¶4), the record indicates that Vargas’ employer is the
Sheriff’s Department.
(See DE #58-5 (EEOC Charge against the
Sheriff’s Department); DE #68-7 at 2, 6 (Sheriff’s Department
performance evaluation reports for Vargas); see also DE #58-2 at
9 (Vargas’ testimony that “the defendants” meant “the Sheriff’s
Department,” Woronka and Buncich).) Because the parties do not
address this inconsistency, the Court assumes that the two entities
are affiliated.
(See, e.g., DE #68-6 (Buncich’s response to
requests for admission regarding “Vargas, of the Lake County
Police/Sheriff’s Department”).)
1
5
Woronka
was
a
police
officer
employed
Department from 1977 to September 2012.
by
the
Sheriff’s
Buncich appointed Woronka
to the position of a Deputy Commander of the Uniformed Patrol
during his first term as Sheriff.
During his second term, Buncich
appointed Woronka to the position of Commander of the Detective
Bureau.
Woronka had little or no direct supervisory authority
over Vargas because he was in a different division.
Woronka did
not have authority to hire, fire, or discipline Vargas.
He had no
decision-making authority over Vargas’ requests for promotions or
assignments, and never made any recommendations concerning Vargas’
promotions or assignments.
Municipal Policies and Discrimination Training
During the time period at issue, the Lake County Employee
Handbook contained a policy prohibiting violence in the workplace,
including any verbal or physical action that is communicated or
perceived as harassment. (DE #58-6.) Under this policy, employees
were to report threats to their supervisor or department head, and
employees who violate this policy were subject to discipline. Lake
County also had an Equal Employment Opportunity policy to recruit,
hire, and promote for all job classifications without regard to
race, color, and national origin.
(DE #58-7.)
This policy
provided that discrimination by co-workers and supervisors would
not be tolerated.
6
The Sheriff’s Department General Order 2000-06 was a policy
against
harassment
in
any
form,
including
racial
and
ethnic
harassment. (DE #58-8.) The General Order provides that incidents
of harassment are to be “reported immediately to the employee’s
supervisor and/or the Sheriff or Chief.”
violated
this
discipline.
anti-harassment
The
Sheriff’s
policy
Department
(Id.)
Any person who
would
be
subject
to
Rules
and
Regulations
8.01.01 provided that no officer shall harass or verbally abuse
anyone who files a complaint against an officer.
(DE #58-9.)
Police officers participated in anti-discrimination training,
though the record is unclear as to the substance and frequency of
such training.
Woronka testified that he participated in such
training twice, and learned that “[t]imes have changed.”
(DE #68-
1 at 30.)
Woronka’s Alleged Misconduct
Sometime during Buncich’s first term as Sheriff (between 1995
and
2002),
Woronka
called
wetback, [and] beaner.”
officers
of
Latino
(DE #68-1 at 40.)
descent
“spik,
At that time, Chief
Tom Downs told Woronka that he “need[ed] to watch his language.”
(Id.)
Between 2000 and 2002, the FOP Chris Anton Lodge (“Lodge”)
disciplined Woronka for referring to Officer Jesse Solomon as
“Gomez.”
(Id. at 24-25.)
Woronka maintains that the Lodge
directed him to write a letter of apology to Officer Solomon, and
7
he did so.
Officer Troy Johnson (“Johnson”) attests that Woronka
was suspended from the Lodge as a result of this incident; Woronka
denies that he was suspended.
Woronka believed that Buncich and
the Sheriff’s Department were aware of the incident, but Buncich
denied knowledge of it. The Sheriff’s Department is not affiliated
with the Lodge and did not take any action against Woronka for the
incident.
Ten years later, sometime shortly before August 20, 2012,
Johnson reported incidents of Woronka calling Johnson “ghetto
Tyrone,”
an
African
American
officer
“Black
Russian,”
and
a
Hispanic officer “wetback” to his Direct Commander Matthew Eaton
and Deputy Chief Daniel Murchek (“Murchek”).
#68-1 at 115.)
(DE #68-2 at 1-2; DE
Murchek allegedly responded to Johnson’s complaint
by “stat[ing] that they were familiar with Hank Woronka’s conduct,
and that Hank Woronka is ‘from the old school.’”
¶17.)
(DE #68-2 at 2,
No official action was taken against Woronka in response to
Johnson’s complaints.
On August 20, 2012, Vargas was in the Patrol Supervisors
office with other officers.
Woronka entered the office, told
Vargas he looked like “a fat Tomato Picker” and asked him “why
don’t you show these guys how you use [sic] to suck Dale Bock’s
dick.”
(DE #68-3.)
Vargas called Woronka an “asshole.”
(Id.)
Woronka attempted to kick Vargas and smacked him in the face.
Vargas grabbed Woronka from behind and put his arm around Woronka’s
8
neck.
Lieutenant Brian Marsh (“Marsh”) broke up this altercation
(“August 20 altercation”).
Woronka then came towards Vargas and
shoved him, and the two began yelling at each other. Officer Scott
Bock observed the altercation and initially thought that Woronka
and Vargas were “play fighting,” but saw that Woronka became
serious once they were separated. (DE #58-4.) One of the officers
advised Vargas to leave the office, and he did.
Later that day, Vargas submitted an internal complaint to
Commander William Paterson describing the August 20 altercation
and explaining that “Woronka harasses myself on a daily basis,”
called Vargas “Beaner, Puerto Rican, Bean counter or Field worker”
on several occasions, and would smack the back of Vargas’ head or
flick his ears.
(DE #68-3 at 1.)
Vargas maintained that he had
not complained about Woronka’s behavior before the August 20
altercation “because of fear of retaliation.”
and
Bock
also
altercation.
submitted
written
accounts
(Id. at 2.)
of
the
Marsh
August
20
The day after the August 20 altercation, Woronka
approached Vargas and told him that “payback’s a bitch.”
(DE# 68-
1 at 47.) Vargas informed Paterson of Woronka’s “paybacks a bitch”
statement.
(DE #68-4.)
Woronka admits to calling Vargas “a wetback and a beaner and
everything else,” and to calling Officer Oreuta “f--king wetback,”
and Officer Oscar Martinez “spik.”
(DE #68-1 at 32-34, 83.)
Woronka testified that his language was “mill talk,” “jiving,” or
9
“just screwing with” Vargas.
(Id. at 23-24.)
He thought Vargas
was a friend, and never meant to hurt his feelings.
Woronka
testified
that
if
he
learned
that
his
(Id. at 22.)
language
was
offensive to another person, he would stop using it with that
person.
(Id. at 56-57; see, e.g., id. at 34, 36-37 (testifying
that he had apologized to Officers Martinez and Johnson for
offending them).
On September 5, 2012, Buncich found Woronka in violation of
Sheriff’s
Department
Rules
and
Regulations
7.07.05,
which
prohibited officers from verbally harassing fellow employees, and
General Order 2000-006.
Buncich suspended Woronka without pay for
fifteen days, removed Woronka from the position of commander, and
demoted him to the permanent rank of captain.
Buncich testified
that prior to the August 20 altercation, he was never notified
that Vargas was subjected to racial harassment by anyone within
the Sheriff’s Department.
On September 11, 2012, Woronka resigned from the Sheriff’s
Department.
On September 14, 2012, Vargas filed an EEOC Charge of
Discrimination (“EEOC Charge”) against the Sheriff’s Department.
The
EEOC
Charge
indicates
that
Vargas’
allegations
of
discrimination are based on race, color, national origin, and
retaliation, and that it is a continuing action.
alleges:
10
The charge
Woronka, Commander of the Detective Bureau, harasses me
because of my national origin.
He calls me “tomato
picker”, “f--king wetback”, “Beaner”, “field worker”,
and other similar comments.
On August 20, 2012, he
physically assaulted me. I reported the harassment and
attack to Commander W. Paterson and Deputy Commander B.
Czerwinski. After I reported Woronka, he threatened me
by saying, “Payback’s a bitch, asshole.” I am not the
first person to report Woronka for harassment.
Lake
County Sheriff’s Department has allowed Woronka to
create a hostile work environment for me and other
minority police officers.
I believe I have been harassed based on my national
origin, Mexican, and retaliated against because I
engaged in a protected activity in violation of my rights
under Title VII. . . .
(DE #58-5.)
Department
After Vargas filed the EEOC Charge, the Sheriff’s
did
not
reduce
Vargas’
compensation
benefits, or change his employment status.
or
employment
Vargas testified that
he has always performed his duties as a patrolman satisfactorily,
despite any harassment by Woronka.
Vargas’ Requests for Promotion
After filing the EEOC Charge, Vargas repeatedly requested
promotion to the rank of corporal, but was not promoted.
As
Sheriff, Buncich had the sole authority to appoint officers to the
rank of corporal.
His criteria for promotion to corporal were:
seniority (including a minimum of five years of service), work
performance, and the need within a division.
In response to
requests
Vargas
for
admissions,
Buncich
denied
prerequisites to be promoted to corporal.
that
met
all
Vargas testified that
six corporal positions existed, and that of seven identified
11
corporals (including a recent retiree), three were “Hispanic,
Mexican or half Mexican,” two were African American, and two were
Caucasian.
(DE #58-2 at 14.)
Claims against Sheriff Buncich in His Official Capacity
The Sheriff Defendants argue that Buncich is entitled to
summary judgment on all official capacity claims because these
claims are construed as claims against the Lake County Police
Department.
Vargas fails to respond to this argument, and thus
waives any argument that these claims are valid.
See Johnson v.
Gen. Bd. of Pension & Health Benefits of United Methodist Church,
733 F.3d 722, 729 (7th Cir. 2013) (holding that arguments not
raised in opposition to a motion for summary judgment are waived);
Palmer v. Marion County, 327 F.3d 588, 597–98 (7th Cir. 2003)
(holding that a party abandoned his claim where he failed to
delineate
the
claim
in
opposition
to
a
motion
for
summary
judgment); Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d
1195, 1197 (7th Cir. 1999) (stating that arguments not presented
in response to a summary judgment motion are waived).
A claim
against a person’s office is no different than a claim against the
entity and is properly dismissed as duplicative.
See Thanongsinh
v. Bd. of Educ., 462 F.3d 762, 771 n.7 (7th Cir. 2006).
Therefore,
the claims against Buncich in his official capacity are dismissed.
12
Count I - Title VII Claims against Woronka in His Individual
Capacity
Woronka
argues
that
the
Title
VII
claims
against
him
individually in Count I must be dismissed. Vargas does not respond
to this argument, presumably because Woronka is correct.
VII authorizes suit only against the employer.
“Title
Individual people
who are agents of the employer cannot be sued as employers under
Title VII.”
Passananti v. Cook County, 689 F.3d 655, 662 n.4 (7th
Cir. 2012).
Because Woronka, in his individual capacity, does not
fall within Title VII’s definition of employer, the Title VII
claims against Woronka in Count I are dismissed.
Count I – Title VII Claims of Sex Discrimination, Disparate Impact,
Disparate Treatment, Training, and Promotion
The Sheriff Defendants move for summary judgment on certain
Title VII claims in Count I because they are outside the scope
Vargas’ EEOC Charge.
“As a general rule, a Title VII plaintiff
cannot bring claims in a lawsuit that are not included in [his]
EEOC charge.”
Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th
Cir. 2000). A plaintiff may pursue a claim not explicitly included
in his EEOC charge “only if [his] allegations fall within the scope
of the earlier charges contained in the EEOC complaint.”
Ezell v.
Potter, 400 F.3d 1041, 1046 (7th Cir. 2005) (citation omitted).
To determine if a claim meets this standard, the court considers
“whether the allegations are like or reasonably related to those
contained in the EEOC complaint.
If they are, then we ask whether
13
the current claim reasonably could have developed from the EEOC’s
investigation of the charges before it.”
Claims
are
“reasonably
related”
relationship between them.”
when
Id. (citation omitted).
“there
is
a
Id. (citation omitted).
factual
The EEOC
charge and the complaint “must describe the same conduct and
implicate the same individuals.”
Id. (citation omitted).
The Sheriff Defendants maintain that the Court should dismiss
the following claims in Count I because they are outside the scope
of Vargas’ EEOC Charge: discrimination based on sex, disparate
impact, disparate treatment, training, and promotion.
response
brief,
discrimination,
training.2
Vargas
does
disparate
not
impact,
claims
disparate
of
treatment,
sex
or
By failing to address these claims, Vargas has waived
any argument in support of them.
Palmer, 327 F.3d at 597–98.
of
address
In his
discrimination
based
on
See Johnson, 733 F.3d at 729;
Therefore, Vargas’ Title VII claims
sex,
disparate
impact,
disparate
treatment, and training are dismissed.
Vargas’ promotion claim is more complicated.
While Count I
does not specifically allege a claim relating to promotion, it
incorporates allegations that Vargas requested and was denied
promotions to the rank of corporal after filing his internal and
The training claim in Count I alleges that “Woronka’s conduct .
. . constitutes a training program that promotes discrimination
because of race, color, or national origin.” (DE #58-1 at 8, ¶62.)
2
14
EEOC complaints.
(See DE #58-1 at 7, ¶¶50-51.)
In his response
brief, Vargas argues that Buncich denied that he was qualified for
promotion to corporal because he is Mexican.
But Vargas failed to
respond to the Sheriff Defendants’ outside-the-scope argument, and
therefore waived this claim.
See Saket v. Am. Airlines, Inc., No.
02 CV 3453, 2004 WL 1064733, at *4 (N.D. Ill. Apr. 21, 2004)
(granting
summary
judgment
beyond-the-scope argument).
where
plaintiff
failed
to
address
Moreover, the EEOC Charge focuses on
Woronka’s harassment; it does not allege that Buncich failed to
promote Vargas because of his race, ethnicity or national origin.
“A failure to promote is a distinct act of discrimination.”
Hale
v. Bd. of Trs. of S. Ill. Univ. Sch. of Med., 219 F. Supp. 3d 860,
867 (C.D. Ill. 2016) (citation omitted). Because Vargas’ promotion
claim does not involve the same individuals or same conduct alleged
in the EEOC Charge, it is outside the scope of the EEOC Charge.
Vargas also argues that the failure to promote him constituted
retaliation for reporting Woronka and filing the EEOC Charge.
The
EEOC Charge indicates that Vargas’ claim was based in part on
retaliation,
“[p]ayback’s
altercation.
and
a
describes
bitch,”
after
(DE #58-5.)
Woronka’s
Vargas
alleged
reported
threat
the
that
August
20
Vargas contends that the “Sheriff’s
department continued to make god [sic] on Woronka’s [threat] by
failing to promote Vargas to the rank of corporal” after he filed
the EEOC Charge.
(DE #69 at 15.)
15
The Sheriff Defendants do not
assert that this retaliation claim is outside the scope of the
EEOC Charge.
Nor can they.
“[R]etaliation for complaining to the
EEOC need not be charged separately from the discrimination that
gave rise to the complaint.”
Horton v. Jackson County Bd. of
County Comm'rs, 343 F.3d 897, 898 (7th Cir. 2003) (citations
omitted).
To the extent Vargas alleges a retaliation claim based
on the failure to promote him to corporal, such claim is not
outside the scope of the EEOC Charge.
Count I – Title VII Hostile Work Environment Claim
Count I alleges that the Sheriff Defendants subjected Vargas
to a hostile work environment in violation of Title VII.
To
survive summary judgment on a hostile work environment claim, a
plaintiff must present sufficient evidence to raise a material
issue of fact on four elements: (1) his work environment must have
been subjectively and objectively offensive; (2) his race and/or
national origin must have been the cause of the harassment; (3)
the conduct must have been severe or pervasive; and (4) there must
be a basis for employer liability, meaning either that a supervisor
participated
in
the
harassment
or
that
the
municipality
negligent in discovering or remedying co-worker harassment.
Liu v. Cook County, 817 F.3d 307, 318 (7th Cir. 2016).
was
See
The Sheriff
Defendants do not dispute that Woronka called Vargas racial slurs,
or that the harassment was based on race and national origin. They
argue
that
Vargas
cannot
demonstrate
16
a
basis
for
employer
liability,
or
that
the
alleged
harassment
was
sufficiently
pervasive.
The basis for employer liability depends on whether the
alleged harassment was perpetrated by a supervisor or a coworker.
“An employer may be strictly liable for harassment by supervisors,
but a negligence standard applies for harassment by coworkers.”
Jajeh v. County of Cook, 678 F.3d 560, 568 (7th Cir. 2012)
(citation omitted).
For purposes of Title VII, a “supervisor”
must have “the power to directly affect the terms and conditions
of the plaintiff’s employment.”
Sheriff
Defendants
maintain
Id. (citation omitted).
that
Woronka
was
not
The
Vargas’
supervisor because he did not have the authority to hire, fire or
discipline Vargas, or transfer his duty assignment.
Vargas does
not argue that Woronka was his supervisor, and thus, the Court
will consider Woronka to be Vargas’ co-worker for the purpose of
this analysis.
An employer may be liable for failing to remedy a hostile
work environment created by a co-worker if it “was negligent in
either discovering or remedying the harassment.”
(citation omitted).
Id. at 569
Vargas must “demonstrate that he notified the
employer about the harassment or that the harassment was so
pervasive that a jury could infer his employer knew about it.”
Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 849 (7th Cir.
2008) (citation omitted).
Courts generally do not consider an
17
employer to be aware of workplace harassment “unless the employee
makes a concerted effort to inform the employer that a problem
exists.” Jajeh, 678 F.3d at 569 (citation omitted). Vargas admits
that he did not complain about Woronka’s harassment prior to the
August 20 altercation, claiming that he feared retaliation.
But
“an employee’s subjective fears of confrontation, unpleasantness
or retaliation do not alleviate the employee’s duty . . . to alert
the employer to the allegedly hostile environment.”
Erie
Foods
Int'l,
Inc.,
576
F.3d
629,
638
(7th
(citations and internal quotation marks omitted).
complained
after
the
August
20
altercation,
Porter v.
Cir.
2009)
When Vargas
Buncich
demoted
Woronka, removed him from his position as commander, and suspended
him for fifteen days without pay.
See Jajeh, 678 F.3d at 569
(“Once an employer is aware of workplace harassment, it can avoid
liability
by
taking
prompt
and
appropriate
corrective
action
reasonably likely to prevent the harassment from recurring.”).
Vargas does not dispute that Woronka was disciplined promptly after
he complained about the August 20 altercation.
Rather, he focuses
on Woronka’s harassment leading up to the August 20 altercation.
Vargas cites evidence that the Lodge disciplined Woronka
between 2000 and 2002 for referring to Officer Jesse Solomon as
“Gomez.”
not
(DE #68-1 at 24-25).
affiliated
with
the
It is undisputed that the Lodge is
Sheriff’s
Department,
and
that
the
Sheriff’s Department did not take any action against Woronka for
18
this incident.
Vargas also proffers evidence that sometime during
Buncich’s first term as Sheriff (between 1995 and 2002), Chief
Downs told Woronka to “watch his language” in response to his
calling officers of Latino descent “spik, wetback, [and] beaner.”
(DE #68-1 at 40.)
Both of these incidents occurred at least ten
years before Woronka’s harassment of Vargas, and are too remote to
support a finding that the Sheriff Defendants had constructive
knowledge of Woronka’s harassment of Vargas.
Vargas maintains that between January 2011 and August 20,
2012, Woronka harassed him on a daily basis, using racial comments
such as beaner, Puerto Rican, bean counter or field worker, and
smacking the back of his head or flicking his ears. Woronka admits
he called Vargas “wetback” and “beaner,” and that he called Officer
Oreuta “wetback,” and Officer Martinez “spik.”
32-34, 83.)
(DE #68-1 at 24,
Vargas also presents evidence that before the August
20 altercation, Johnson reported incidents of Woronka calling
Johnson and two other officers “ghetto Tyrone,” “Black Russian,”
and “wetback.”
(DE #68-2 at 1-2; DE #68-1 at 115.)
Deputy Chief
Murchek allegedly responded to Johnson’s complaint by saying that
“they were familiar with Hank Woronka’s conduct, and that Hank
Woronka is ‘from the old school.’”
(DE #68-2 at 2, ¶17.)
No
corrective action was taken as a result of Johnson’s complaint.
If a factfinder believes that supervisors knew about the
hostile work environment, the argument that the Sheriff Defendants
19
did not know, and could not have known, about Woronka’s harassment
may be weakened.
See Hawkins v. Groot Indus., Inc., No. 01 C 1731,
2003 WL 1720069, *5 (N.D. Ill. Mar. 31, 2003) (finding that a jury
must weigh evidence of supervisors’ awareness of harassment and
make credibility determinations regarding the employer’s knowledge
of it).
Considered in the light most favorable to Vargas, the
evidence suggests that the Sheriff’s Department was aware that
Woronka was calling fellow officers racial slurs.
Therefore, the
Court finds a genuine issue of material fact exists as to whether
the Sheriff Defendants had constructive knowledge of Woronka’s
harassment of Vargas.
The Sheriff Defendants also argue that Woronka’s harassment
of Vargas was not so pervasive as to rise to the level of a Title
VII violation.
In assessing the pervasiveness and severity of the
offensive conduct, both Vargas and the Sheriff Defendants rely on
Minority
Police
Officers
Association
v.
City
of
South
Bend,
Indiana, 617 F. Supp. 1330, 1352 (N.D. Ind. 1985). Minority Police
holds that offensive racial epithets do not rise to the level of
a Title VII violation unless the working environment is “dominated
by racial slurs.”
Id. at 1353. More recently, the Seventh Circuit
explained that “although a workplace need not be ‘hellish’ to
constitute a hostile work environment, . . . [the] environment
must be so pervaded by discrimination that the terms and conditions
of employment are altered.”
Alamo v. Bliss, 864 F.3d 541, 550
20
(7th Cir. 2017) (internal citations, quotation marks and brackets
omitted).
There is no “magic number” of instances or type of slur
that indicates a hostile work environment. Instead, we
look to the “pervasiveness and severity” of language
used, which we have described as being “inversely
related.” A “severe episode” that occurs “as rarely as
once” and a “relent-less pattern of lesser harassment”
both may violate Title VII.
Id. (internal citations omitted); see Cerros v. Steel Techs., 288
F.3d 1040, 1047 (7th Cir. 2002) (recognizing that an “unambiguously
racial epithet falls on the ‘more severe’ end of the spectrum”).
“Offhand comments, isolated incidents, and simple teasing do not
rise to the level of conduct that alters the terms and conditions
of employment.”
Scruggs v. Garst Seed Co., 587 F.3d 832, 840–41
(7th Cir. 2009) (citation omitted).
of
the
circumstances
in
Courts consider the totality
determining
whether
conduct
is
sufficiently severe or pervasive to be actionable, including: “(1)
the frequency of the discriminatory conduct; (2) how offensive a
reasonable person would deem it to be; (3) whether it is physically
threatening or humiliating conduct as opposed to verbal abuse; (4)
whether
it
unreasonably
interferes
with
an
employee’s
work
performance; and (5) whether it was directed at the victim.”
Nichols v. Mich. City Plant Plan. Dep't, 755 F.3d 594, 601 (7th
Cir. 2014) (citation omitted).
The Sheriff Defendants contend that Vargas fails to provide
specific
examples
of
Woronka’s
21
allegedly
daily
harassment
to
demonstrate that his comments pervaded Vargas’ work environment.
They cite Williams v. Arrow Chevrolet, Inc., 121 F. App'x 148 (7th
Cir. 2005), in which the Seventh Circuit affirmed summary judgment
on a hostile work environment claim where the plaintiff claimed
that he was subjected to racial slurs daily and referred generally
to “O.J. jokes, Martin Luther King jokes, Farrakhan jokes,” but
only described a single utterance of an offensive epithet directed
at a customer.
Id. at 149-50.
In contrast, here Woronka admits
to calling Vargas and other officers a variety of racial slurs,
including “wetback,” “Puerto Rican,” and “spik.”
See Rodgers v.
W.-S. Life Ins. Co., 12 F.3d 668, 671–73 (7th Cir. 1993) (finding
an
actionable
hostile
work
environment
when
supervisors
and
employees referred to an employee by a racial slur between five
and ten times); Alamo, 864 F.3d at 550 (noting that the racial
slurs “spic” and “f--king Puerto Rican” are “severe”).
hostile
work
environment
claim
involves
ongoing
plaintiff need not date stamp every incident.”
“Where a
conduct,
a
Hawkins, 2003 WL
1720069, at *2 (finding that plaintiff’s testimony that he was
subjected to racial epithets on a daily basis raised an issue of
fact regarding the level of racial hostility in the employer’s
work environment) (citation and internal quotation marks omitted).
The Sheriff Defendants also argue that Woronka’s racial comments
to other officers do not prove that Vargas was subject to a hostile
work environment.
While Woronka’s calling other officers racial
22
slurs would not have the same impact on Vargas as Woronka’s
comments to him, they are not irrelevant to the hostile work
environment claim.
See Smith v. Ne. Ill. Univ., 388 F.3d 559, 567
(7th Cir. 2004) (“While certainly relevant to the determination of
a hostile work environment claim, when harassment is directed at
someone other than the plaintiff, the impact of [such] ‘secondhand harassment’ is obviously not as great as the impact of
harassment directed at the plaintiff.”) (internal quotation marks
omitted).
It is a close call as to whether Vargas has met his burden to
show pervasiveness.
Woronka’s
conduct
On the one hand, there is no dispute that
was
offensive
and
was
directed
at
Vargas.
Woronka admits that he called Vargas and other officers a variety
of racial slurs.
His testimony, along with evidence of Murchek’s
alleged response to Johnson’s complaints that they were familiar
with Woronka’s conduct, indicates that Woronka’s use of racial
slurs was not an isolated incident.
On the other hand, Vargas
testified that he was able to perform his duties as a patrolman
throughout
harassment.
his
employment
satisfactorily,
despite
Woronka’s
And while Woronka’s offensive comments culminated in
the August 20 altercation, Vargas does not claim that Woronka’s
harassment was physically threatening.
Considering the evidence
in the light most favorable to Vargas, the Court finds that he has
offered sufficient evidence such that a factfinder could determine
23
that Woronka’s harassment was pervasive.
motion
for
summary
judgment
on
the
The Sheriff Defendants’
Title
VII
hostile
work
environment claim is denied.
Count I – Title VII Retaliation Claim
Vargas argues that he has established a prima facie case of
retaliation under Title VII.
“A retaliation claim arises when an
employee engages in activity protected by Title VII and suffers an
adverse employment action as a result.”
Ferrill v. Oak Creek-
Franklin Joint Sch. Dist., 860 F.3d 494, 501 (7th Cir. 2017).
The
parties do not dispute that Vargas engaged in protected activity
by reporting Woronka and filing the EEOC Charge.
The issue is
whether Vargas’ protected activity is causally linked to an adverse
employment action.
The Sheriff Defendants initially argue that Vargas cannot
prevail on a Title VII retaliation claim because he has no hostile
work environment claim, and thus, no materially adverse employment
action.
See Yuhe Diamba Wembi v. Metro Air Serv., 195 F. Supp. 3d
957, 968 (N.D. Ill. 2016).
argument.
Vargas does not respond to this
Rather, he maintains that the adverse employment action
was the failure to promote him to the rank of corporal.3
“The
denial of a promotion can be an adverse action for purposes of a
Vargas also mentions that the Sheriff Defendants retaliated
against him by failing to transfer him to other units, but fails
to cite evidence supporting this claim.
3
24
retaliation claim.”
Poullard v. McDonald, 829 F.3d 844, 858 (7th
Cir. 2016) (citation omitted).
Vargas proffers evidence that (1)
the Sheriff has the exclusive right to appoint an officer to the
rank of corporal, (2) an officer must have five years of service
before being considered for the rank of corporal, and (3) the
criteria for the position are work performance, seniority, and the
need within a division.
than
five
years
of
It is undisputed that Vargas had more
service
with
good
work
performance
and
repeatedly sought a promotion to corporal, but other officers were
promoted to corporal in his division.
In response to requests for
admissions, Buncich denied that Vargas met all prerequisites to be
promoted to corporal.
Vargas maintains that Buncich denied that
Vargas
for
was
qualified
this
promotion
because
Vargas
had
complained about Woronka and filed the EEOC Charge.
The Sheriff Defendants do not respond to the merits of Vargas’
argument that the failure to promote him was retaliation. Instead,
they contend that the Title VII retaliation claim was first raised
in Vargas’ response brief, and thus is waived.
unavailing.
This argument is
Vargas’ EEOC Charge indicates that one of its bases
is retaliation.
Count I of the Complaint incorporates allegations
that Vargas’ requests for promotion to corporal were denied after
he complained about Woronka and filed the EEOC Charge.
(See DE#
58-1 at 7, ¶¶50-51, 59; see also id. at 13, ¶ 94 (alleging in Count
II that “Defendants denied Plaintiff’s promotion to Corporal so as
25
to retaliate against Plaintiff for filing said complaints.”).)
While Count I does not specifically mention retaliation, “it is
factual allegations, not legal theories, that must be pleaded in
a complaint.”
Whitaker v. Milwaukee County, Wis., 772 F.3d 802,
808 (7th Cir. 2014).
Moreover, as noted above, the Sheriff
Defendants acknowledged the existence of the retaliation claim in
their opening brief, arguing that Vargas had “no viable Title VII
retaliation claim” based on the merits of the claim.
12.)
(DE #57 at
Because the Sheriff Defendants had fair warning of this
theory of liability, Vargas did not waive it.
Vargas raises genuine issues of material fact as to the reason
he was not promoted to the rank of corporal.
Therefore, the
Sheriff Defendants’ motion for summary judgment is denied as to
the Title VII retaliation claim.
Counts II and III – 42 U.S.C. § 1981 Claims
Counts II and III assert claims against all defendants based
on 42 U.S.C. § 1981.
Section 1981 guarantees that “[a]ll persons
within the jurisdiction of the United States shall have the same
right . . . to make and enforce contracts,” regardless of race.
42 U.S.C. § 1981.
Defendants contend that Counts II and III must
be dismissed because “[Section] 1981 does not create a private
right of action against state actors.”
Campbell v. Forest Pres.
Dist. of Cook County, Ill., 752 F.3d 665, 671 (7th Cir. 2014).
Rather, Section 1983 “remains the exclusive remedy for violations
26
of § 1981 committed by state actors.”
Id.; see Wilson v. City of
Galesburg, No. 416CV04025SLDJEH, 2016 WL 7408818, at *4 (C.D. Ill.
Dec. 22, 2016) (Ҥ 1983 is the exclusive mechanism to vindicate
violations of § 1981 by an individual state actor acting in his
individual capacity”).
Vargas does not respond to defendants’
argument, and thereby waives any argument that he may assert claims
based on Section 1981.
F.3d at 1197.
See Johnson, 733 F.3d at 729; Caruso, 197
Furthermore, because the Sheriff Defendants and
Woronka were state actors, Vargas cannot assert claims based on
Section 1981.
Counts II and III are dismissed.
Count IV and V – 42 U.S.C. § 1983 Claims against Woronka
Counts IV and V assert claims against all defendants based on
42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth
Amendment, and, by incorporation of the allegations in Counts II
and III, 42 U.S.C. § 1981.4
these claims against him.
Woronka moves for summary judgment on
To prevail on a Section 1983 claim, a
plaintiff must show that he was deprived of a right secured by the
Constitution or laws of the United States and that the deprivation
Count V alleges a Section 1983 claim based on a failure to train
Woronka. While not addressed by the parties, the Court notes that
Vargas does not explain how Woronka could be held liable for
failing to train himself. See generally Sanville v. McCaughtry,
266 F.3d 724, 739 (7th Cir. 2001) (“failure to train claims are
usually
maintained
against
municipalities,
not
against
individuals”).
4
27
was caused by a person “acting under color of state law.”
Reynolds
v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
Vargas argues that Woronka’s assault and battery during the
August 20 altercation form the basis of his Section 1983 claims
against Woronka. He relies upon Treiber v. Rompala, No. 01 C 5049,
2002 WL 1467673 (N.D. Ill. July 9, 2002), in which a junior police
officer sued another police officer alleging battery, illegal
seizure and excessive force under Section 1983 and the Fourth
Amendment. The complaint alleged that the defendant police officer
intentionally terminated the plaintiff’s movement when he grabbed
and twisted her arm.
the complaint.
Id. at *3.
The defendant moved to dismiss
The court concluded that the complaint “alleged
conduct during the parties’ on-the-job interactions which could
have
been
related
to
(although
perhaps
an
abuse
of)
defendant’s] duties as a higher-ranking police officer.”
*4.
[the
Id. at
The court found the plaintiff had alleged an inappropriate
seizure with excessive force by a state official acting under state
law,
but
noted
that
“it
was
only
with
a
broad
reading
and
significant deference to Plaintiff that this court was able to
characterize
violation.”
the
incident
Id. at *5.
as
a
potential
constitutional
The court granted qualified immunity to
the defendant, explaining that “a reasonable officer in [the
defendant’s] position would not have considered that Plaintiff’s
28
constitutional rights were in jeopardy when he allegedly grabbed
and twisted her arm.”
Id. at *5.5
Like the defendant in Treiber, Woronka was an on-duty officer
with a higher rank than Vargas at the time of the August 20
altercation.
Despite this factual similarity, the Court finds
Treiber to be distinguishable.
Treiber addressed a motion to
dismiss, rather than a motion for summary judgment.
The standard
for summary judgment is, of course, different from the standard
for a motion to dismiss for failure to state a claim.
See
Commissioning Agents, Inc. v. Long, 143 F. Supp. 3d 775, 785 (S.D.
Ind. 2015) (“[T]he 12(b)(6) standard is ‘plaintiff friendly,’ thus
many claims survive a motion to dismiss only to be disposed of on
summary judgment.”).
Unlike Treiber, Vargas does not claim that
Woronka seized him in violation of the Fourth Amendment.
Vargas
asserts that Woronka should be held individually liable for the
Section 1983 equal protection claims because he was on duty during
the August 20 altercation, and Vargas was subordinate to him.
He
In response to Treiber, Woronka quotes extensively from the
Treiber court’s analysis of qualified immunity. He contends that
his intent is critical to the “acting under color of state law”
analysis, and maintains that he did not contemplate depriving
Vargas of his constitutional rights during their altercation. To
the extent Woronka attempts to argue a qualified immunity defense,
this argument is waived because he did not assert this defense in
his motion for summary judgment. See Narducci v. Moore, 572 F.3d
313, 324 (7th Cir. 2009) (noting defendants “waived the qualified
immunity defense in the summary judgment proceedings because they
failed to raise the issue before their reply brief”).
5
29
relies on David v. City and County of Denver, 101 F.3d 1344 (10th
Cir. 1996), in which the Tenth Circuit held that a plaintiff may
be able to recover on her Section 1983 Fourteenth Amendment sexual
harassment claim if she could establish that defendant officers
“had supervisory authority over her or in some other way exercised
state authority over her.”
Id. at 1354.
Here, Vargas cites no
evidence that Woronka had supervisory authority or exercised state
authority over him.
Moreover, while Vargas maintains that Sections 1981 and 1983
protect against the misuse of power by an individual acting under
color of state law, “every official abuse of power, even if
unreasonable, unjustified, or outrageous, does not rise to the
level of a federal constitutional deprivation.
Some such conduct
may simply violate state tort law or indeed may be perfectly legal,
though unseemly and reprehensible.”
600, 605 (7th Cir. 2003).
McCoy v. Harrison, 341 F.3d
Vargas maintains that his Section 1983
claims against Woronka are supported by evidence demonstrating
“common law torts of assault and battery.”6
(DE #71 at 13.)
He
Vargas also argues in passing that the Complaint includes facts
that support assault and battery claims, but the Court finds that
the Complaint cannot fairly be read to include such claims.
Generally, “[a] plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion for summary
judgment.” Insolia v. Philip Morris Inc., 216 F.3d 596, 606 (7th
Cir. 2000) (citation omitted).
If Vargas wanted to amend the
Complaint to include these claims, he could have sought leave to
do so. He did not, so these claims will not be addressed.
6
30
fails to proffer evidence that Woronka’s interaction during the
August 20 altercation rose to the level of a deprivation of Vargas’
constitutional rights.
As such, this evidence fails to support
the Section 1983 claims against Woronka.
Citing Fane v. Locke Reynolds, LLP, 480 F.3d 534 (7th Cir.
2007), Vargas argues that he satisfies the elements of a prima
facie case of racial discrimination against Woronka because: 1) he
is a member of a protected class; 2) he was meeting his employer’s
legitimate performance expectations; 3) he suffered an adverse
employment action; and 4) other similarly situated employees who
were
not
favorably.
members
of
the
protected
See id. at 538.7
class
were
treated
more
For an individual defendant to be
liable under Section 1983, he must have participated directly in
the constitutional violation.
Hildebrandt v. Ill. Dep't of Nat.
Res., 347 F.3d 1014, 1039 (7th Cir. 2003) (“some causal connection
or affirmative link between the action complained about and the
official sued is necessary for § 1983 recovery”).
Vargas does not
proffer evidence of any adverse employment action for which Woronka
was personally responsible.
Woronka maintains that he had no
The Court notes that Fane does not address Section 1983 claims,
but rather, Title VII and Section 1981 claims. See 480 F.3d at
536.
However, “[w]hen the plaintiff alleges intentional
discrimination . . . the same standards in general govern liability
under sections 1981, 1983, and Title VII.” Wuerffel v. Cook County
Sheriff's Office, No. 14 C 3990, 2016 WL 1660497, at *9 (N.D. Ill.
Apr. 27, 2016) (citations omitted).
7
31
personal involvement with the alleged adverse employment actions
of failing to promote or reassign Vargas, had no decision-making
authority over Vargas’ requests for promotions and assignments,
and
never
made
any
recommendations
regarding
these
requests.
Vargas did not respond to this argument, and therefore waived it.
See Palmer, 327 F.3d at 597–98; Caruso, 197 F.3d at 1197.
Because
Vargas fails to raise a genuine issue of material fact regarding
Section 1983 claims against Woronka, Woronka’s motion for summary
judgment on Counts IV and V is granted.
Count IV – 42 U.S.C. § 1983 Discrimination Claim against the
Sheriff Defendants
The Sheriff Defendants move for summary judgment on Count IV,
which asserts that they discriminated against Vargas in violation
of Section 1983. “Plaintiffs who seek to impose liability on local
governments under § 1983 must prove that ‘action pursuant to
official municipal policy’ caused their injury.”
Connick v.
Thompson, 563 U.S. 51, 60–61, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d
417 (2011) (quoting Monell v. New York Dep’t of Soc. Servs., 436
U.S. 658, 691, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978)).
For a
Section 1983 Monell claim, a plaintiff must “establish an official
policy through (1) an express policy that causes a constitutional
deprivation when enforced; (2) a widespread practice that is so
permanent
and
well-settled
that
it
constitutes
a
custom
or
practice; or (3) an allegation that the constitutional injury was
32
caused by a person with final policymaking authority.”
Teesdale
v. City of Chicago, 690 F.3d 829, 834 (7th Cir. 2012) (citation
and internal quotation marks omitted).
While Vargas does not
specifically address these requirements, he provides evidence that
Buncich, as Sheriff, had final policymaking authority regarding
officer promotions, and failed to promote Vargas.
Vargas maintains that he has established a prima facie case
of racial discrimination claim against the Sheriff Defendants
because: 1) he is a member of a protected class; 2) he was meeting
his employer’s legitimate performance expectations; 3) he suffered
an adverse employment action; and 4) other similarly situated
employees who were not members of the protected class were treated
more favorably.
See Fane, 480 F.3d at 538 (addressing Title VII
and Section 1981 claims). Vargas relies upon evidence that Buncich
denied that he was qualified to be promoted, despite the fact that
he met Buncich’s criteria for promotion to corporal.
According to
Vargas, a factfinder could reasonably infer that Buncich denied
that Vargas was qualified for the promotion because he is Mexican.8
However,
Vargas
fails
to
cite
evidence
demonstrating
that
similarly situated employees not in the protected class were
Vargas also asserts that “evidence as to how Vargas was treated
by the Command staff in general from 2011-August 20, 2012” supports
his discrimination claim. (DE #69 at 18.) Because Vargas provides
no support for this assertion, this perfunctory and undeveloped
argument is waived.
See United States v. Hassebrock, 663 F.3d
906, 914 (7th Cir. 2011).
8
33
treated more favorably.
Rather, the evidence indicates that
Buncich promoted other officers of Mexican or Hispanic heritage to
the rank of corporal.
Because Vargas fails to raise a genuine
issue of material fact as to his discrimination claim, Count IV is
dismissed.
Count V – 42 U.S.C. § 1983 Failure to Train Claim against the
Sheriff Defendants
Count
V
asserts
that
the
Sheriff
Defendants
failed
to
adequately train Woronka with respect to racial discrimination in
violation
of
Section
1983.
In
certain
circumstances,
a
municipality’s decision not to train employees about their legal
duty to avoid violating citizens’ rights may rise to the level of
a municipal policy for purposes of Section 1983.
See Connick, 563
U.S. at 61 (“A municipality’s culpability for a deprivation of
rights is at its most tenuous where a claim turns on a failure to
train.”).
To satisfy Section 1983, a municipality’s failure to
train its employees “must amount to deliberate indifference to the
rights of persons with whom the [untrained employees] come into
contact.”
Id. (citation and internal quotation marks omitted).
“[D]eliberate indifference’ is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.”
The
record
demonstrates
that
Id. (citation omitted).
the
Sheriff
Defendants
several policies prohibiting racial discrimination.
34
had
Lake County
had a policy prohibiting any verbal or physical action in the
workplace that is communicated or perceived as harassment. General
Order 2000-06 prohibited harassment in any form, including racial
and ethnic harassment.
be disciplined.
Both policies state that violators would
Lake County’s Equal Employment Opportunity Policy
provided that discrimination by co-workers and supervisors would
not be tolerated.9
Vargas disputes the effectiveness of these
policies, and argues that they are broad and general provisions
rather than policies. The Court disagrees. While Vargas complains
that the policies do not explain racial harassment or offer
employees guidance regarding what to do if they believe they have
been subjected to racial harassment, a review of the policies
provides this information.
For example, General Order 2000-006
explains that “[e]mployees expect to work in an environment free
of intimidation, humiliation, insult, and offensive and verbal
abuse,” and encourages employees to report harassment immediately
to “their supervisor and/or Sheriff or Chief.”
(DE #58-8; see
also DE #58-6 (anti-violence in the workplace policy provides that
employees should report threats to their supervisor or department
The Equal Employment Opportunity policy also provided that
meetings would be held at least annually to explain the intent of
the
policy
and
individual
responsibility
for
effective
implementation. Vargas proffers evidence that these meetings were
not held, and that the Lake County Grievance Committee was
dissolved, but fails to explain how this evidence supports his
failure to train claim.
9
35
head).)
Vargas also contends that officers did not follow General
Order 2000-006, which allegedly required them to inform the Sheriff
of racial slurs and/or discriminatory policies.
While Buncich was
not informed of Woronka’s misconduct until after the August 20
altercation, Johnson and Vargas followed General Order 2000-006 by
submitting their complaints to supervisors.
Vargas concedes that officers are required to go through
training with respect to racial discrimination.
Because the
officers receive some training, Vargas must show that the training
program is so inadequate that the need for more training is
obvious.
See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.
Ct. 1197, 103 L.Ed.2d 412 (1989).
Vargas provides no details
regarding
and
the
officers’
training,
points
to
no
obvious
inadequacy in the anti-discrimination training program.
Rather,
he proffers evidence that Woronka only attended the training twice,
could not remember when he last attended the training, and only
learned from it that “[t]imes have changed.”
(DE #68-1 at 30.)
The fact “[t]hat a particular officer may be unsatisfactorily
trained
will
not
alone
suffice
to
fasten
liability
on
the
[municipality].” Canton, 489 U.S. at 390; see Palmquist v. Selvik,
111 F.3d 1332, 1345 (7th Cir. 1997) (“In determining the adequacy
of
training,
the
focus
must
be
on
the
program,
particular officers were adequately trained.”).
not
whether
“[I]t may be, for
example, that an otherwise sound program has occasionally been
36
negligently administered,” or that Woronka was an exceptionally
poor student.
Ellis v. Country Club Hills, No. 06-CV-1895, 2011
WL 1113032, at *6 (N.D. Ill. Mar. 24, 2011) (quoting Canton, 489
U.S. at 391).10
It is undisputed that the Lake County officers received antidiscrimination training.
Vargas presents no evidence that any
aspect of that training was inadequate.
Therefore, there is no
evidence that the Sheriff Defendants “had notice that further
training was obviously necessary to correct an inadequacy in the
officers’ previous training.”
Bell v. Vill. of Streamwood, No.
CIV.A. 10 C 3263, 2011 WL 4435664, at *10 (N.D. Ill. Sept. 6,
2011).
The Sheriff Defendants’ motion for summary judgment on
Count V is granted.
Count VI – Indiana Constitutional Claim
All defendants assert that Vargas’ claim under Article I,
Section 23 of the Indiana Constitution must be dismissed because
the Complaint seeks only monetary damages.
“[N]o Indiana court
has explicitly recognized a private right of action for monetary
damages under the Indiana Constitution.”
Smith v. Ind. Dep't of
Vargas also relies upon the Sheriff Defendants’ failure to retrain Woronka after the August 20 altercation, and failure to place
anything in Woronka’s personnel file regarding the August 20
altercation. The Court notes that Woronka resigned shortly after
the August 20 altercation, and finds that the lack of such evidence
does not raise an issue of material fact as to the failure to train
claim.
10
37
Corr., 871 N.E.2d 975, 985 (Ind. Ct. App. 2007); see McIntire vs.
Franklin Twp. Cmty. Sch. Corp., 15 N.E.3d 131, 137 (Ind. Ct. App.
2014) (noting that “there can be no claim for monetary damages
arising out of the Indiana Constitution”).
Vargas does not oppose
the defendants’ motions as to this claim.
Accordingly, Count IV
is dismissed.
CONCLUSION
For the reasons set forth above, the Sheriff Defendants’
motion for summary judgment (DE #56) is GRANTED IN PART and DENIED
IN PART.
The motion is GRANTED as to: (1) all claims against John
Buncich; (2) the Title VII claims of sex discrimination, disparate
impact, disparate treatment, training, and promotion in Count I;
and (3) Counts II-VI against the Lake County Police Department.
These claims are DISMISSED.
The motion is DENIED as to the Title
VII claims of hostile work environment and retaliation against the
Lake County Police Department in Count I.
summary judgment (DE #61) is GRANTED.
Woronka’s motion for
Counts I-VI against Woronka
are DISMISSED.
DATED:
September 27, 2017
/s/ RUDY LOZANO, Judge
United States District Court
38
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