United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP
P. SIMON, JUDGE
This is
a case involving allegations of discrimination and sexual
harassment by the Hammond Police Department and one of its
officers. Plaintiff Denise Szany has sued the officer
(defendant Jaime Garcia) and the City of Hammond (“the
City”). Presently before me are two motions relating to
Szany's fifth amended complaint [DE 118] (which I'll
just refer to as the complaint because prior iterations are
not relevant for present purposes). First, the City has filed
a Motion to Strike Count II of the complaint [DE 133] which
it says was improperly included despite the fact that the
parties had previously agreed to dismiss this very claim.
Second, the City has filed a Motion to Dismiss for failure to
state a claim as to Count VII of the complaint [DE 126],
which alleges retaliation in violation of Title VII against
the City. As discussed below, the City has the better
argument in each instance and accordingly both motions will
be granted.
Background
This
lawsuit stems originally from an alleged battery and sexual
harassment which occurred between two police officers with
the Hammond Police Department. Szany alleges that defendant
Garcia assaulted her, while both were at work and in uniform,
by grabbing her by her vest, then her belt and then
physically harming her. She alleges that during this
altercation, Garcia slapped her on the buttocks. Szany filed
a complaint with the EEOC regarding this conduct and
eventually received a right to sue letter from that agency
and then filed this lawsuit.
Count
VII alleges that after the lawsuit was filed, the City's
illegal behavior continued. Szany alleges that she was
retaliated against for filing her EEOC complaint against the
City and Garcia. Specifically, she alleges that the City
“compelled” her “to use the same police
car” as Garcia. She says that as such she was
“placed in a dangerous situation” which caused
“a tangible adverse employment action.” She
alleges that she “reasonable believes” this was
done to retaliate and to dissuade her from continuing her
lawsuit. [DE 118 at 15.]
Discussion
As
mentioned, there are two motions before me relating to
Szany's complaint. The first, is easily resolved, as
Szany all but concedes the issue. The second, the motion to
dismiss, is slightly more complicated, but likewise will be
resolved in the City's favor.
A.
The City's Motion to Strike.
The
City's Motion to Strike is straightforward. In a prior
iteration of Szany's complaint, she alleged that the City
was liable to her under 42 U.S.C. § 1983 under the
Monell doctrine. The parties later stipulated to a
dismissal of this count in September 2018. [DE 73.]
Thereafter, Szany sought leave to file her current complaint
for the purposes of adding a new claim based upon alleged
sexual harassment and a hostile work environment. [DE 108.]
Leave to amend to add this count was granted [DE 166] and
that is the count which is the subject of the City's
motion to dismiss (discussed below). But the current
complaint did not just add Count VII; it also included the
same Count II which the parties had previously stipulated to
dismiss. The City sees this as gamesmanship on Szany's
part, adding back in a claim without agreement or leave of
court. Szany says it was but a “scrivener's
error” that an entire multi-paragraph count was
included in the current complaint. In any event, it is clear
that Count II should not be a part of this lawsuit-and Szany
concedes as much. Thus, to avoid any confusion as to what
claims remain operative-Count II for Monell
liability under 42 U.S.C. § 1983 will be stricken. When
Szany files her sixth amended complaint, she should ensure
that it does not contain claims which have been previously
dismissed.
B.
The City's Motion to Dismiss Count VII.
The
City has also moved to dismiss Szany's claim that the
City retaliated against her by allowing her sexual harassment
to continue, thereby creating a hostile work environment. The
City says that even taking everything Szany says in her
complaint as true (which I must), Szany has not met the low
bar of even pleading a hostile work environment claim. As
recounted in the Background section above, the facts which
Szany bases her claim on are meager. She simply says that at
some point in 2018, she was “compelled” to use
the same patrol car as defendant Garcia. She further alleges
that this use of the same patrol car was in retaliation for
her pursuing her claims against the City.
While
employment discrimination cases are frequently too
fact-intensive to be capable of being resolved at the motion
to dismiss stage, “a Complaint must contain more than
‘an unadorned, the-defendant-unlawfully-harmed-me
accusation.'” E.E.O.C. v. Phil Vinar Furniture,
Inc., No. 09-4052, 2010 WL 914775, at *2 (C.D. Ill. Mar.
9, 2010) (citation omitted). In order to state a hostile work
environment, a plaintiff must allege an environment that is
“both objectively and subjectively offensive, one that
a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998). This is a totality of the circumstances type inquiry
and among factors I look at are the “frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.” Id., at
787-788.
Furthermore,
Title VII makes it unlawful for an employer to retaliate
against an employee who has “opposed any practice made
an unlawful employment practice by this subchapter or ... has
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding or hearing”
under the statute. 42 U.S.C. § 2000e- 3(a).
The
Seventh Circuit has abandoned the “direct vs. indirect
evidence” framework for analyzing retaliation claims,
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764
(7th Cir. 2016), but the basic elements of a claim have
remain. In order to state a claim for retaliation, a
plaintiff must show that their employer took (1)
“materially adverse” actions against them (2)
which produced “an injury or harm” that (3) would
have “dissuaded a reasonable work from making or
supporting a charge of discrimination.” Burlington
N. & Santa Fe R.R. Co. v. ...