Opinion
No. 98 C 2245
January 23, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff commenced an action against defendant, the City of Chicago (City) for alleged hostile environment sexual harassment pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 2000e-2 and for a violation of equal protection pursuant to 42 U.S.C. § 1983. Count II of plaintiffs complaint alleged a violation of equal protection by Robert Witkowski (Witkowski) based on a theory of supervisory liability pursuant to 42 U.S.C. § 1983. Before this Court is the defendants' and plaintiffs Motions for Summary Judgment.
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admission on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). All the evidence and the reasonable inferences that may be drawn from the evidence is viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Insurance Co., 203 F.3d 997, 1003 (7th Cir. 2000). However, the nonmovant must still come forward with evidence establishing the elements of her claim on which she bears the burden of proof at trial. As such, she must establish specific facts that show there is a genuine issue for trial. Miller, 203 F.3d at 2003.
In February 1999, defendants' Motion to Dismiss was denied by Judge Gottschall. McHugh v. City of Chicago, No. 98 C 2245, 1999 WL 89558, (N.D.Ill. Feb. 16, 1999). The Court found, in part, that at the stage of the case at that time, the factors required to rely on the continuing violation theory weighed in favor of plaintiff and denied defendants' Motion to Dismiss portions of plaintiffs complaint dependent on allegations occurring prior to April 16, 1996. McHugh, at 8-16. Pursuant to an administrative order, the case was reassigned to this Court.
"A court's decision constitutes the law of the case only if the court `actually decided' the issue. In re Soybean Futures Litigation, 892 F. Supp. 1025, 1042, (N.D.Ill 1995), quoting Paine Webber, Inc. v. Farnam, 870 F.2d 1286, 1291 (7th Cir. 1989). The law of the case doctrine "is no more than a presumption, one whose strength varies with the circumstances; it is not a straightjacket." Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227-28 (7th Cir. 1995). Furthermore, a prior decision may be revisited if the court is presented with additional evidence Curran v. Kwon, 153 F.3d 481, 487 (7th Cir. 1998).
At the time the Court denied defendants' Motion to Dismiss, the Court examined only whether the plaintiff sufficiently plead a cause of action. The Court did not examine, as it could not on a motion to dismiss, the factual support for the allegations. On the present motions, this Court is presented with a new challenge by the defendant, i.e., whether the fully-developed factual record contains disputed issues of material fact entitling the plaintiff to a trial on her claims. This is now properly considered in light of the now complete factual record. See Figueroa v. City of Chicago, No. 97 C 8861, 2000 WL 283080 (N.D.Ill. Mar. 3, 2000) (finding some of the plaintiff's claims were time-barred on a motion for summary judgment after a previous judge denied a motion to dismiss based on allegations the claims were time-barred).
Plaintiffs complaint pleads facts beginning August 1984 to June 1997. Defendants contend that plaintiffs compliant is time-barred, and plaintiff asserts the continuing violation doctrine exception.
Plaintiff worked at the City Department of Streets and Sanitation from August 1984 through October 1984; at which time, she was laid off. (Plaint.'s 5671(a)(3) Statement 19). On November 6, 1986, plaintiff was hired as a seasonal motor truck driver (MTD) at O'Hare Airport, and on April 16, 1987, she transferred to Midway Airport. (Id., at ¶¶ 4-5). Plaintiff alleges she was the first and only female full-time MTD at Midway Airport. (Id., at ¶ 6). On April 16, 1996, plaintiff transferred from Midway Airport to a position with the Department of Streets and Sanitation. (Id., at ¶ 18).
In Illinois, a complainant must file a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discriminatory act, and failure to do so renders the charges untimely.See Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 396 (7th Cir. 1999) ( Filipovic). In addition, a two-year statute of limitations applies to § 1983 claims. Owens v. Okure, 488 U.S. 235, 250 (1989). In the instant case, plaintiff filed a charge with the EEOC on May I, 1996, and her first complaint in federal court on April 10, 1998. Plaintiff concedes that only those claims based on conduct occurring after July 6, 1995 (300 days from the time she filed her EEOC charge) are timely as to her Title VII claim. She also concedes that the applicable statute of limitations for her § 1983 claims began to run on April 10, 1996 (two years from the time she filed her complaint); therefore, only the allegations concerning conduct between April 10, 1996 and April 16, 1996 fall within the limitations period because she obtained employment elsewhere on April 16, 1996.
Plaintiff was no longer employed with defendant after April 16, 1996; therefore, she could not have been exposed to a hostile environment and been discriminated against by defendant after that time.
The applicable limitations period of the present case is April 10, 1996 through April 16, 1996 for plaintiffs § 1983 claims (two years from the date of filing the complaint) and July 6, 1995 for plaintiffs Titie VII claim (300 days from the time of filing the EEOC charge). Plaintiff argues that conduct during the limitations period, such as continued pig graffiti, pig noises on the radio, and the coworker opening his pants, "anchor" the previous conduct and, therefore, may be considered by this Court for both her § 1983 claims and Title VII claim. The Court is not persuaded that the continuing violation doctrine applies as to any of plaintiffs claims.
The continuing violation doctrine allows a complainant to obtain relief for a time-barred act of discrimination by linking it with facts that fail within the statutory limitations period. See Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). Three factors are considered in determining whether the series of acts should be treated as one continuous act ending within the limitations period: (1) whether the acts involve the same subject matter; (2) the frequency at which they occur; and (3) the degree of permanence of the alleged acts of discrimination, "which should trigger an employee's awareness of and duty to assert his or her rights." Selan, 969 F.2d at 564-65. In relation to the third factor, recent Seventh Circuit decisions have emphasized that a plaintiff may not base a suit on conduct that occurred outside the statute of limitations if it is evident before the plaintiff files suit that she was the victim of harassment. See Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 344 (7th Cir 1999) ("if the comment is repeated over a period of years, its cumulative effect likely precludes invocation" of the continuing violation doctrine); Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th Cir 1999); Filipovic, 176 F.3d at 396) (continuing violation doctrine not applicable based on name-calling that occurred in much the same form for years prior to filing his claim); Miller v. American Family Mutual Insurance Co., 203 F.3d 997, 1004 (7th Cir. 2000) (upholding district court's determination plaintiff could not avail herself to the continuing violation doctrine because she was alerted to possible discrimination, and she did nothing); DeClue v. Central Illinois Light Co., 223 F.3d 434, 435-36 (7th Cir. 2000) (denying invocation of continuing violation doctrine because "[n]othing that happened later, that is, within the period of limitations, added materially to the conditions of which she complains; it was just more of the same."); see also Steward v. Atwood Mobil Products, No 98 C 50125, 2000 WL 193085 (N.D.Ill. Feb. 7, 2000) ("continuing violation does not apply because [plaintiff] believed she was a victim of harassment long before she filed her EEOC charge, and she has no excuse for waiting").
In the present case, plaintiff alleges she was the first and only female full-time MTD at Midway Airport. (Plaint.'s 56.1(a)(3) Statement ¶ 6). From August 1984 through October 1984, while employed at the City Department of Streets and Sanitation, plaintiff was exposed to "explicit" and "dirty" books and magazines in the workplace and overheard comments from male employees that she was taking away jobs from men. (Id., at ¶ 19-20).
On November 6, 1986 plaintiff was hired as a seasonal MTD at O'Hare Airport, and on April 16, 1987, she transferred to Midway Airport. (Plaint.'s 56.1(a)(3) Statement ¶ 4-5). Plaintiff alleges that while at O'Hare Airport, she was exposed to sexually explicit magazines and books and that she found the magazines offensive. (Id., at ¶ 25). At Midway Airport, beginning in the fall of 1987, plaintiff alleges she was treated differently than male coworkers, overheard derogatory comments about females as MTD's, and was exposed to sexual comments by coworkers. (Id., at ¶¶ 26-41, 46, 121, 123). "Dirty", "x-rated" books and naked calendars were in the workplace beginning in the summer of 1987 and through 1995 or 1996. (Id., at ¶ 45, 55). The derogatory comments about women and specifically the plaintiff were made from 1988 through 1996. (Id., at ¶¶ 50, 52, 59). Plaintiff alleges that from 1989 through 1996, several employees would state that she was "sucking Gene's dick to get out of work." (Id., at 64).
In the summer of 1987 through the winter of 1987 and again from 1988 through February or March 1996, a coworker repeatedly "hit on" plaintiff. (Plaint's 56.1(a)(3) Statement ¶ 86-89, 95). Plaintiff further alleges that in 1990, a coworker would always brag about "how big he was"; and he once held his penis in his hands and asked plaintiff to "look how big it is". (Id., at ¶ 82, 84). The same coworker also "spread open his pants, open[ed] his belt, pull[ed] down his pants, sometimes past his butt, so he could tuck his shirt neatly and "fix his stuff" in front of plaintiff between 50 — 100 times from 1987 through 1996. (Id., at 91). In 1989, the coworker left a "nasty message on plaintiffs home answering machine." (Id., at 97). Plaintiff alleges this coworker harassed her the entire time she was at Midway and that she was "scared to work with him." (Id., at 102).
In the fall of 1991, a coworker started scribbling on the walls of the Driver's Room and drew penises on a picnic table that was covered with graffiti and on the bathroom walls. (Plaint's 56.1(a)(3) Statement ¶¶ 129, 132). In 1992, graffiti in the bathroom included drawings depicting breasts and penises. (Id., at ¶ 137). In March 1995, plaintiff observed graffiti on the bathroom wall that depicted female breasts and a penis and read "she sucks it" and "bitch suck hole bitch"; plaintiff believed the graffiti was directed at her. (Id., at ¶¶ 142-143). The graffiti remained in the bathroom from March 1995 until April 1996. (Id., at ¶ 147). In April 1995, plaintiff observed "pig graffiti" that she believed was referring to her because of her appearance. (Id., at ¶¶ 148-151). In April 1995, plaintiff complained to Witkowski about the graffiti; to which, he asked plaintiff what she was doing in the bathroom in a huffy"voice. (Id., at ¶¶ 154-155). Shortly thereafter, a memo was distributed concerning the graffiti, and the bathroom walls were painted. (Id., at ¶¶ 160. 165). In September 1995, the graffiti started to slowly return. (Id., at ¶ 171). The graffiti again made reference to pigs, and plaintiff believed it was targeted at her. (Id., at ¶¶ 187-188) In February 1996, plaintiff began hearing pig snorts when she spoke on the truck radio system, and she discovered the word "snout" written on her personnel file. (Id., at ¶¶ 75, 267). In March 1996 plaintiffs name was cut out of the MTD work schedule on the drivers' bulletin board. (Id., at ¶ 272).
The above undisputed facts demonstrate that plaintiff has failed to establish the third factor required for the continuing violation doctrine exception. The Seventh Circuit has emphasized that in relation to the third Selan requirement of permanence of the alleged acts of discrimination, a plaintiff may not base a suit on conduct that occurred outside the statute of limitations if it is evident before the plaintiff files suit that she was the victim of harassment. Hardin, 167 F.3d at 344. Here, plaintiffs allegations are replete with allegations of a sexual nature, including pornography in the work place for over a 10-year period and a coworker exposing himself to her as early as 1990. The graffiti in the workplace began in 1991 and continued through her tenure with the exception of a few months in the fall of 1995. Based on the alleged incidents, nothing added materially to the conditions of which plaintiff complains. Much of the complained incidents were more of the same that had been occurring for years, and many of the incidents that occurred earlier were more serious (i.e., a coworker exposing himself); and plaintiff cannot be excused for waiting to bring her claim. See DeClue, 233 F.3d at 436 (incidents that occurred during the limitations period were "just more of the same" and placed plaintiff on notice; plaintiff could no longer base a claim on those incidents); Filipovic, 176 F.3d at 396-97 (incidents occurred in the same form for years prior to filing a claim were time-barred); Minor, 174 F.3d at 857 ("if the earlier acts were more serious ones and the later acts were not essential to make it apparent to the victim that she had a claim . . . she cannot reach back and impose liability on the earlier acts"). Therefore, as to plaintiffs § 1983 claim, only factors within the period of April 10, 1996 to April 16, 1996 may be considered, and as to plaintiffs Title VII claim only factors from July 6, 1995 to April 16, 1996 may be considered.
A. Section 1983 Claim Against The City
Section 1983 provides that "Every person who, under color of any statute, ordinance, regulation, custom or usage . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured . . . . 42 U.S.C. § 1983. To establish liability under § 1983, a plaintiff must demonstrate that an unconstitutional action was part of the entity's policy or custom. Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-94.
"Sexual harassment of female employees by a state employer constitutes sex discrimination for purposes of the equal protection clause of the fourteenth amendment. Bohen v. City of East Chicago, 799 F.2d 1180, 1187 (7th Cir. 1986). A plaintiff may demonstrate sex discrimination by showing that sexual harassment that is attributable to the employer under § 1983 amounted to intentional sex discrimination or by showing a conscious failure of the employer to protect the plaintiff from abusive conditions created by fellow employees amounted to intentional discrimination. Bohen, 799 F.2d at 1187.
A plaintiff may prove a municipality's policy has violated an individual's constitutional rights in three ways: (1) the existence of an express policy that when enforced constitutes a deprivation; (2) a widespread practice that, while not authorized by written law or an express policy, is so permanent and well-settled that it constitutes a "custom or usage" with the force of law; or (3) an allegation that the constitutional injury was caused by an individual with final policy-making authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).
Plaintiff alleges she was subjected to a sexually harassing work environment in violation of her right to equal protection, and the City had a custom or practice of failing to protect employees from such sexual harassment. Assuming that the graffiti and other offensive behavior plaintiff alleges occurred continuously throughout April 10, 1996 to April 16, 1996, plaintiff cannot demonstrate that the City's failure to remedy the alleged sexual discrimination within a six-day period created a hostile work environment and that the City had a custom or practice of failing to protect employees from such sexual discrimination. Defendant City's Motion for Summary Judgment as to Count I of plaintiffs Amended Complaint is granted, and plaintiffs Motion for Summary Judgement as to Count I is denied.
B. Section 1983 Claim Against Witkowski
To establish a § 1983 claim against a supervisory official, a plaintiff must demonstrate that the supervisor knowingly, willfully, or recklessly caused the alleged constitutional deprivation by his action or failure to act. Rascon v. Hardiman, 803 F.2d 269, 273-74 (7th Cir. 1986). Negligence, including gross negligence by a supervisor, is not enough to impose liability. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). The supervisor must know about the misconduct and facilitate it, condone it, or turn a blind eye to the misconduct. Jones, 856 F.2d at 992-93.
Plaintiff alleges Witkowski's failure to respond to her complaints and his failure to investigate and notify the City's Silo demonstrate that he "turn[ed] a blind eye toward" the hostile work environment. Assuming that the graffiti and other offensive behavior plaintiff alleges occurred continuously throughout April 10, 1996 to April 16, 1996, and that Witkowski was aware of plaintiffs complaints, plaintiff cannot demonstrate that Witkowski' s failure to remedy the alleged sexual discrimination within a six-day period created a hostile work environment or that he condoned the behavior or turned a blind eye toward the behavior. Defendant Witkowski's Motion for Summary Judgment as to Count II of plaintiffs Amended Complaint is granted, and plaintiffs Motion for Summary Judgement as to Count II is denied.
C. Title VII Claim Against the City
To establish a hostile work environment claim under Title VII, a plaintiff must prove; (1) the workplace was permeated with discriminatory intimidation, ridicule, or insult that was sufficiently severe or pervasive to alter the conditions of the plaintiffs employment and create an abusive working environment; (2) the harassment was based on plaintiffs sex; (3) the plaintiff perceived the work environment to be hostile or abusive; (4) a reasonable person would have perceived the work environment to be hostile or abusive; and (5) the employer knew or reasonably should have known that the plaintiff was being subjected to such treatment, and it did not take appropriate corrective action. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (7th Cir. 1999).
Inappropriate conduct that is inflicted on both sexes or is inflicted regardless of sex does not fall within the protections of Title VII. See Holman v. State of Indiana, 211 F.3d 399, 403 (7th Cir. 2000); Shepard v. Slater Steels Corp., 168 F.3d 998, 1011 (7th Cir. 1999). "[F]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). "[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances. These may include 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 . . . ." Harris v. forklift Sys., Inc., 510 U.S. 17, 20-21 (1993).
Defendant first argues that plaintiff has failed to show she was subjected to a hostile environment because of her sex. Rather, the conduct was in relation to plaintiffs person and was similar to that conduct targeting males. Plaintiff argues there is overwhelming evidence that the conduct was based on plaintiffs sex.
Plaintiff was employed by the City at Midway Airport as a MTD during the relevant time period and was the first regular, full-time female MTD, (Plaint.'s 56.1(a)(3) Statement ¶¶ 2, 6). In September 1995, graffiti started to appear in a washroom at the hangar. (Def.'s 56.1(a)(3) Statement ¶ 119). The graffiti included, in part: a drawing of a hog with the words "Miss Piggy" on it, the word "hog" above it, and around it the words "snouts", "beast farm", "1-900-oink", and "swill breath"; the words "piggus-a-saurus" and "snorter-of-cobs"; the words "pigasaurus, as in swine, lazy sow, snorter of cobs, rice chomping piglet"; "I smoke my butt, like a slut, can't keep my big snout shut. Who am I? Answer — Miss Piggy (Seavers non-bun)"; "Miss Piggy `Rice Queen'"; "the suet sucking, corn cob eating"; "Ruth's a seasonal oink"; drawings of pig faces; "get some corn, put it out, Miss Piggy will suck it through her snout"; and "Ruth" written above the word "hog" with an arrow pointing down. (Id., at ¶ 121), Plaintiff believed the graffiti targeted her because of her weight and because she was a women. (Id., at ¶ 122-123; Plaint.'s Response to ¶ 122-123). Graffiti referring to other male employees included drawings of male sexual anatomy; "suck hole", Bob's boy", and Unabomber"; "Mr. Fat Fuck is next to go"; "Joey the dis king"; and "the fat ass is back". (Def.'s 56.1(a)(3) Statement ¶¶ 134-140; Plaint's Response to ¶¶ 134-140).
During the relevant time period, coworkers stated that plaintiff "was sucking Gene's dick to get out of work". (Plaint's 56.1(a)(3) Statement ¶ 63). In addition, Jones, a coworker, would "spread open his pants, open his belt, pull his pants down, sometimes past his butt, so he could tuck in his shirt very neatly and "fix his stuff" in front of plaintiff. (Id., at ¶ 91). On at least one occasion, Jones put whipped cream on his 1ips, licked his lips, and said, "Ummm. Oh Ruth. Don't this look good". (Id, at ¶ 95). In December 1995 and January 1996, plaintiff heard Jones say, "she takes it in the ass". (Id., at ¶ 114).
In February 1996, noises such as snorting were heard over the MTD radio. On February 22, 1996, plaintiff found the word "snout" written on her personnel file. (Def.'s 56.1(a)(3) Statement ¶¶ 142, 148). Between January and April 1996, a sign for an apartment for rent was posted on the bulletin board in the Drivers' Room. Within a week of the sign being posted, someone wrote "Snouts" and "$100" on the posting. (Plaint.'s 56.1(a)(3) Statement ¶ 269). On March 21, 1996, plaintiffs name was cut out of the MTD work schedule on the Drivers' Room bulletin board. (Id., at ¶ 272).
Defendant has shown that some male employees were subjected to graffiti similar to that which plaintiff was subjected. However, the above facts also establish that; plaintiff was the first and only full-time, regular female MTD; the amount and content of the graffiti directed toward plaintiff was greater than that of the graffiti targeting male employees; and some of the graffiti targeting plaintiff was of a sexual nature. Also, at least one male coworker made sexual comments toward plaintiff on more than one occasion. The Court holds that a jury could reasonably find that the above-cited facts constituted inappropriate conduct directed at plaintiff based on her sex.
In addition, material questions of fact exist whether plaintiffs environment was severe and pervasive. While there were no physical threats or physical touching of plaintiff, the frequency of the conduct targeting plaintiff, including repeated graffiti, the content of some the graffiti, questions concerning the frequency of coworker Jones' sexual comments directed toward plaintiff, the number of coworkers partaking in the alleged offensive conduct, the lack of objection by the male employees targeted by some graffiti, and the interference with plaintiffs work as evidenced by interruptions through "pig noises" when she attempted to speak on the radio, constitute questions of material fact whether plaintiffs environment was severe and pervasive and prevent summary judgment for either party. See Guzman v. Abbott Laboratories, 59 F. Supp.2d 747, 762 (N.D.Ill. 1999) (denying summary judgment on hostile work environment claim).
While questions of material fact exist as to whether plaintiff was sexually harassed, plaintiff is not able to recover if defendant took "reasonable steps to discover and rectify acts of sexual harassment of its employees." Baskerville v. Culligan Intl. Co., 50 F.3d 428, 431 (7th Cir 1995).
Plaintiffs supervisors were Gene Ryan and Frank Tummillo. (Plaint.'s 56.1(a)(3) Statement ¶ 7). Witkowski was Director of Vehicle Operations, and his duties included the supervision of the MTD section. (Id., at ¶ 14). Witkowski reported to Al Perez, who is in charge of the airfield at Midway Airport. (Id., at ¶ 17). Beginning in March 1996, at least some of the graffiti was painted over with black paint on a weekly basis until approximately April 1996. (Def.'s 56.1(a)(3) Statement ¶ 127). Witkowski observed graffiti in the washroom in April 1996. (Id. at ¶ 131-132). Plaintiff attempted to speak to Witkowski about Jones on at least two occasions in late 1995. (Id., at ¶¶ 115, 117). Plaintiff complained to Ryan about coworkers "keying in" the microphone when she wanted to speak on the radio, (Plaint.'s 56.1(a)(3) Statement ¶ 79). In addition, Perez was aware of the "oinking" as well as other noises, such as burping, snoring, and kissing noises on the radio. (Def's 56.1(a)(3) Statement ¶¶ 142-143). Throughout her tenure at O'Hare and Midway Airport, plaintiff complained to her foremen about what was taking place. (Plaint.'s 56.1(a)93) Statement ¶¶ 22, 24, 29, 38, 42, 54, 69, 79, 83, 85, 90, 93, 94, 96, 98, 105, 111, 116, 117, 118, 173, 177, 179, 183, 190, 199, 260, 271).
On February 5, 1996, plaintiff contacted Andra Gomberg at the City's Silo. Plaintiff informed Gomberg that she was being harassed by male coworkers and that there was graffiti in the workplace. Plaintiff did not specify what the graffiti stated or depicted. (Def.'s 56.1(a)(3) Statement ¶¶ 164-66). During the conversation, Gomberg wrote notes contemporaneous with the conversation. (Id., at ¶ 168). Gomberg's notes indicate that plaintiff complained of writing and drawings of pigs on the bathroom walls. The notes state that plaintiff wanted to transfer to the Streets and Sanitation Department because she was having shift and seniority problems. It also states that plaintiff "did not want to file a complaint but just wanted to get a transfer." (Id., at ¶¶ 170-172) Plaintiff disputes the contents of the note, averring that her transfer was requested because the graffiti and harassment. (Plaint's Response to ¶¶ 170-172). Gomberg did not view plaintiffs complaint as a sexual harassment complaint because she believed plaintiff was complaining about graffiti that mostly targeted plaintiffs weight and did not seem to contain sexual content. (Def.'s 56.1(a)(3) Statement ¶ 174). On December 12, 1996, plaintiff was interviewed by a 5110 investigator and signed a complaint. (Id., at ¶ 292).
While the parties dispute whether plaintiff complained to her supervisors, the above indicates that someone knew of the problem of graffiti if someone was required to paint over it on a weekly basis. The need to repaint over the graffiti on a weekly basis calls into question the reasonableness of such a corrective action. In addition, Perez testified that he heard "oinking" as well as other noises over the radio, and there is no evidence that anything was done to prevent such noises. Furthermore, the SHO's response, or alleged lack thereof, after plaintiffs initial complaint, and the alleged lack of knowledge by the plaintiff of the existence of the City's sexual harassment policy also demonstrate that questions of material fact exist as to whether the City knew of the alleged misconduct and whether its corrective actions were reasonable that require summary judgment be denied as to both parties.
Defendant City's Motion for Summary is granted as to Count I of plaintiffs Amended Complaint and denied as to Count III of plaintiffs amended complaint. Defendant Witkowski's Motion for Summary Judgment is granted as to Count II of plaintiffs Amended Complaint. Plaintiff Motion for Summary Judgment is denied as to all counts.