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
)
)
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)
)
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)

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.

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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

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