Labor & Employment Law Daily Alleged harassment in 2014 linked to intimidation in 2017 so continuing violations doctrine applies
Tuesday, October 2, 2018

Alleged harassment in 2014 linked to intimidation in 2017 so continuing violations doctrine applies

By Lorene D. Park, J.D.

The Chicago Fire Department’s response to alleged sexual harassment by a fire department employee that began in 2014 with text messages, emails, and a Facebook post; took a break in 2015 when the harasser and target worked in different locations; and then started up again in 2016 when the department transferred the Jane Doe plaintiff to work in the harasser’s same district once again, could all be part of the same unlawful employment practice that encompassed his alleged intimidation of the plaintiff in 2017, concluded a federal district court in Illinois, finding that the continuing violations doctrine precluded dismissal of her hostile work environment claim. Another Jane Doe plaintiff failed to sufficiently tie together the two periods of harassment she alleged, though, so her claim was dismissed (Jane Doe 1 v. City of Chicago, September 27, 2018, Guzman, R.).

Five “Jane Doe” plaintiffs who worked as paramedics claimed the Chicago Fire Department had a pattern or practice of allowing sexual harassment and intimidation by superiors. Filing suit under Title VII and state law, they also alleged sex discrimination and retaliation.

Hostile work environment. Filing a partial motion to dismiss, the city first challenged Jane Doe 2’s claims of hostile work environment and quid pro quo sexual harassment, arguing many of her allegations occurred outside the limitations period. However, the court found that, a review of the allegations showed the continuing violation doctrine could apply here because the alleged harassment could be considered part of the same unlawful practice occurring over time.

Pre-2017 incidents. Jane Doe 2 alleged that she dated a colleague in late 2013 and ended the relationship after three months. In early 2014 he started sending her text messages seeking to reconcile and threatening suicide; he posted on Facebook a photo of her in a bra and underwear with a sexual comment; and he sent her nasty, degrading email. She went to internal affairs, but the investigator told her there was nothing they could do because he was doing all of this “outside of work.” In mid-March 2014, Jane Doe 2 sought an order of protection but was dissuaded by a department social worker from continuing “the legal route” because the male colleague was “in a better place” and his career could be ruined.

In late 2014, Jane Doe 2 transferred to a different assignment and did not have contact with the alleged harasser again until the department transferred again in October 2016 to the same district in which he worked. Late that year his behavior caused her to believe he was trying to intimidate her by seeking frequent shifts at her firehouse. Arrangements were made to transfer him and on November 10, 2016, within her earshot, he screamed: “This is bullshit! This is racism! That fucking bitch did this!” That same day she wrote a complaint to the deputy chief stating she did not feel safe working in the firehouse with her alleged harasser.

Accused of false complaint. Jane Doe 2 did not receive a response to that letter but in June 2017 she was served with an incident report alleging she made fraudulent charges of harassment and she was informed that the male colleague had filed a grievance about his “ban” from her firehouse. The union voted to lift the ban and in October 2017, the employee received disciplinary charges for false allegations and lying to IAD in an investigation. The charges were not sustained but she never received any official explanation about the allegations against her.

2017 incident and continuing violation. According to the employee, her hostile work environment claim was timely because the foregoing harassment continued into December 2017, when the male colleague was assigned to her firehouse. She had a meeting with a superior and a female coworker in the superior’s office about her prior problems with the male colleague. The superior left the office to tell the alleged harasser to report to a different firehouse and soon thereafter, the alleged harasser pounded on the door, entered the office and said “Oh, excuse me! Excuse me!” The female colleague stepped in front of the employee to stop him “from lunging” at her and the superior later said the male colleague had entered the office to make contact with the employee, who was left crying and shaking from the encounter. This said the court, was enough to plausibly suggest a continuing violation, so Jane Doe 2’s sexual harassment claims survived.

Jane Doe 5’s claim time-barred. Unlike Jane Doe 2, Jane Doe 5 could not rely on the continuing violations doctrine. The complaint alleged two periods of harassment but it was unclear from the complaint how many years went by between them, and Jane Doe 5 did not connect the two time periods or even allege that she had reported the earlier harassment so as to put the department on notice. Thus, no inference could be made that the department had any approach that remained constant over the two periods.

Disparate treatment claims. The city also moved to dismiss all plaintiffs’ disparate treatment claims, arguing they were duplicative of the hostile work environment and retaliation claims. Denying the motion, the court explained that the claims required proof of different elements. Also, the mere fact that certain actions might serve as a basis for more than one claim did not necessarily make the claims duplicative. Of course, the plaintiffs would not be able to recover twice for the same injury, but that was not a concern at this stage.

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