Krystal WILSON, Plaintiff-Appellant, v. COOK COUNTY, Defendant-Appellee.
No. 13-1464.
United States Court of Appeals, Seventh Circuit.
Decided Feb. 10, 2014.
742 F.3d 775
Argued Jan. 9, 2014.
In light of the foregoing, it was reasonable for the issuing judge to conclude that a search would uncover illegal drugs. Therefore, Sutton‘s arguments are insufficient to justify reversing the district court‘s denial of Sutton‘s motion to suppress.
II.
Both parties addressed the good faith exception from United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). However, this exception is only relevant if the warrant at issue lacked probable cause. Because we find it clear that probable cause existed at the time the search warrant was issued, we see no need to address the good faith exception.
WE AFFIRM.
Before MANION and SYKES, Circuit Judges, and GRIESBACH, District Judge.*
GRIESBACH, District Judge.
Krystal Almaguer (now Wilson), an out-of-work massage therapist, interviewed for a position at Oak Forest Hospital, a part of the Cook County Bureau of Health Services. Unfortunately, the job existed only in the mind of Felice “Phil” Vanaria, a politically-appointed staffer at the hospital who had no authority to interview or hire applicants, much less create positions. Vanaria used the promise of the phony job to convince Almaguer to give him erotic massages and engage in sexual contact. After Almaguer discovered the ruse and called the police department, she brought this action against Cook County under Title VII of the Civil Rights Act of 1964,
Dana L. Kurtz, Attorney, Kurtz Law Offices, Hinsdale, IL, for Plaintiff-Appellant.
I.
Between 1984 and 1998, Felice Vanaria was employed by the Cook County Adult Probation Department, a unit of the Circuit Court of Cook County under the supervision of the chief judge. During that period, Vanaria was involved in several incidents in which female probationers alleged he had sought sexual favors in exchange for looser conditions of probation. Following an investigation, Vanaria‘s employment was terminated. He spent the next four years working at a casino.
In late 2004 Commissioner Moreno recommended Vanaria for a job at the county‘s Oak Forest Hospital, and Vanaria began working there in 2005. Like Vanaria‘s previous job with Moreno, the position was a Shakman exempt position, meaning that it was excluded from the decrees prohibiting the county from making hiring decisions based on politics. See United States v. Del Valle, 674 F.3d 696, 698-99 (7th Cir.2012); Shakman v. Dunne, 829 F.2d 1387, 1389 (7th Cir.1987). This meant that rather than applying for the job through a typical competitive application process at the hospital itself, Vanaria obtained the job through the patronage of Commissioner Moreno and County Board President Todd Stroger. Although Vanaria was subject to fingerprinting, the investigation giving rise to his 1998 termination from the Adult Probation Department did not come to light during the hiring process. In fact, taking the facts in the light most favorable to Almaguer, it appears that the hospital was not even involved in the hiring process but was instead simply told that Vanaria would be working there. The hospital‘s human resources director explained that the hospital did not conduct independent background investigations of political patronage hires.
Vanaria‘s position at the hospital involved coordinating continuing education programs for physicians and staff. In 2005, a representative for the Eli Lilly & Co. pharmaceutical company alleged that Vanaria had attempted to condition her participation in one of these programs on her giving him a massage. An investigation resulted in oral counseling for Vanaria and an order to stay away from the representative, but no discipline.
In January 2007, after a referral from a mutual acquaintance, Vanaria called Krystal Almaguer to inquire about massage services. The conversation eventually turned to employment (Almaguer was unemployed at the time), and Vanaria suggested that there might be some positions at the hospital for which she would be qualified. The same day, Almaguer went to the hospital to provide Vanaria with a résumé. Without conducting a traditional interview, Vanaria offered her a $52,000-a-year position as a physical therapist. When she alerted Vanaria to the fact that she was not qualified as a physical therapist (she lacked the requisite degree and license), he explained that he could make things happen because certain people owed him favors. He also stated that he could get in trouble for getting her the job.
Vanaria‘s ruse proved comprehensive and convincing. During his meeting with Almaguer, he provided her with legitimate application forms and insurance paperwork, and he had her fill out a consent form for fingerprinting. Thus, apart from the alacrity and informality of the process, the meeting had many of the hallmarks of a bona fide job interview. On February 1, 2007, at Vanaria‘s request, Almaguer returned to his office with copies of her Social Security card and birth certificate. At this second meeting, Vanaria asked Al-
Later, after some hesitation about accepting the position, Almaguer eventually agreed to have Vanaria visit her at her home massage studio. There, the two removed their clothes and Almaguer acceded to Vanaria‘s wish that she manually stimulate him.
In an effort to prolong the unfortunate scheme, the next week Vanaria enlisted a female friend to pose as an HR employee and call Almaguer about a change in the position being offered. Vanaria explained that the new position would pay $10,000 more but would require Almaguer to give him another massage. This development was apparently enough to arouse Almaguer‘s suspicions, because she immediately called the hospital‘s HR department. When the HR department informed her that no such position had ever existed, Almaguer enlisted the help of the Orland Park Police Department. Vanaria eventually pled guilty to charges of official misconduct and bribery. This lawsuit against Cook County followed.
The district court initially granted summary judgment in favor of Cook County on the Title VII claim, as well as all of the state law claims, which the court had supplemental jurisdiction over pursuant to
II.
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
A. Equal Protection
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a government agency may be liable when its official policy or custom inflicts the plaintiff‘s injury. But “a municipality may not be held liable under
In support of her equal protection claim Almaguer argues that Cook County‘s policy of not responding to sexual harassment complaints was the cause of her constitutional injury. The district court originally sided with Almaguer, noting that by continuing to employ Vanaria despite the extensive history of misconduct, a jury could find that Cook County created the highly predictable risk that he would en-
Almaguer does not challenge the district court‘s conclusion that Vanaria was not a county employee while working as a probation officer. Although his behavior as a probation officer does not directly speak to any of Cook County‘s practices or policies during that time period, Almaguer argues that the county‘s treatment of Vanaria‘s behavior after he was hired at the hospital suffices to show that the county had a permanent and well-settled policy of turning a blind eye to sexual misconduct.
Almaguer analogizes her case to Bohen v. City of East Chicago, Ind., where this court recognized that sexual harassment “constitutes sex discrimination in violation of the equal protection clause and is actionable under
Almaguer cites the 2005 incident between Vanaria and the Eli Lilly representative as evidence that the county had a policy or practice of inadequately investigating sexual harassment claims. But the hospital investigated that incident and directed Vanaria to stay away from the representative. She also makes much of the fact that after her allegations came to light, the county did not immediately terminate his employment. These few incidents do not come close to establishing the kind of pervasive custom that would give rise to liability under Bohen and Monell. Although this court has not adopted any bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident—or even three incidents—do not suffice. Thomas v. Cook County Sheriff‘s Dept., 604 F.3d 293, 303 (7th Cir.2010) (citing Gable v. City of Chi., 296 F.3d 531, 538 (7th Cir.2002) and Cosby v. Ward, 843 F.2d 967, 983 (7th Cir.1988)).
Municipalities may be found directly liable only when their own policy or custom is the “moving force” behind the deprivation. Teesdale, 690 F.3d at 833. Here, it is clear that the moving force behind the harassment was Vanaria, not Cook County. Accordingly, like the district court, we conclude that Almaguer cannot establish that she suffered any equal protection injury at the hands of Cook County.
B. Due Process
As set forth above, sexual harassment claims brought under
Cook County first argues that Almaguer did not suffer any due process injury because her bodily integrity was compromised not by the county but by her own decision to trade sexual favors for a chance at an attractive county job for which she was grossly unqualified. Almaguer was not assaulted or coerced; she was a willing participant who acceded to Vanaria‘s directives so long as the prospect of a job loomed large. She did not call the police when the sexual activity was proposed, nor even when it occurred. It was only when she realized that she would not be receiving her end of the bargain that she involved the authorities. Given her voluntary participation in the quid pro quo scheme, Cook County argues that Almaguer cannot be said to have experienced any infringement of her due process rights.
Almaguer counters that her case is like Wudtke v. Davel, supra, 128 F.3d at 1059, where a school superintendent allegedly threatened a schoolteacher by refusing to approve the renewal of her teaching license, and by otherwise making her job much more difficult, unless she engaged in sexual acts with him. That analogy might prove to be a difficult one. It is an interesting question whether sexual contact extorted by a current supervisor is fundamentally different than sexual activity attained by promises of providing a job. But consideration of these distinctions will have to wait for another day because the county did not make this argument during district court proceedings, and thus it is waived on appeal. Frey Corp. v. City of Peoria, Ill., 735 F.3d 505, 509 (7th Cir.2013).
Finding the issue waived, we will assume that Almaguer suffered an injury to her bodily integrity and will focus, as the parties and district court did, on the questions of whether Cook County caused that injury and whether it possessed the requisite culpability. To reiterate, in order to “establish municipal liability, a plaintiff must show the existence of an official policy or other governmental custom that not only causes but is the moving force behind the deprivation of constitutional rights.” Teesdale, 690 F.3d at 833 (internal quotation marks omitted).
We begin by noting the Supreme Court‘s counsel that “[w]here a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Brown, 520 U.S. at 405, 117 S.Ct. 1382. In Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Supreme Court held that to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff‘s rights, a plaintiff must demonstrate that the municipal action was taken with “deliberate indifference” to its known or obvious consequences. Deliberate indifference means that the municipality knows or should know that consequences will ensue because those consequences were an obvious result of its conduct. “A showing of simple or even heightened negligence will not suffice.” Brown, 520 U.S. at 407, 117 S.Ct. 1382.
To recall, the most troubling conduct Vanaria engaged in, so far as we know, was the coercion of female probationers who were under his supervision. That occurred during the 1990s, and resulted in his termination in 1998. During the ensuing seven years, Vanaria was employed, apparently without incident, at a casino and with Commissioner Moreno beginning in 2002. With Moreno‘s support, Vanaria moved to the hospital in 2005.
Thus, had the county conducted a thorough background examination prior to allowing Vanaria to work at the hospital, it would have uncovered the fact that he had engaged in grossly inappropriate conduct as recently as seven years earlier. However, it would also have learned that there had been no incidents during the most recent seven-year period of his employment. Given the passage of time without incident and the fact that Vanaria had aged seven years, it is difficult to conclude that Vanaria‘s misconduct with respect to Almaguer was so obvious that any jury could find causation or deliberate indifference. No doubt Vanaria was more likely to commit sexual misdeeds than someone without his checkered history, but we must recognize that individuals are capable of growth and not necessarily doomed to a life of recidivism. And given that Vanaria was fired from his state position in 1998, it is not implausible to believe that he would have learned from his errors and decided that another infraction would have caused his political support to dry up. Almaguer‘s argument is more persuasive with the benefit of 20/20 hindsight, but of course we must view things from the perspective of the hospital at the time it hired Vanaria. In 2005, it was far from obvious that he would engage in sexually inappropriate conduct with a complete stranger.
Our conclusion is bolstered by a comparison of Vanaria‘s past conduct with the behavior he exhibited toward Almaguer. Vanaria‘s modus operandi had been one of abuse of power. As a probation officer, he had attempted to trade favorable probation conditions for sexual favors, and his position of supervisory power was what made his proposals possible. By contrast, Vanaria did not exercise any legitimate power over Almaguer. As detailed above, he was able to entice Almaguer through a ruse he concocted, but the manner in which he operated was a sharp deviation from his past misconduct. That is, even if the county had known about his probation history, it could hardly have expected that Vanaria would have impersonated a human resources employee and lured a complete stranger into the building. He had no history of such conduct. In Brown the Supreme Court made clear that it is not enough that a municipality know an employee would be likely to violate a plaintiff‘s constitutional rights in some kind of general sense: “a finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional inju-
Finally, and relatedly, we believe it is important to consider the position into which Vanaria was actually placed. Had Cook County hired Vanaria for a job in which he supervised or exercised power over large numbers of women, its liability might be a different story. As noted above, Vanaria‘s modus operandi was to exploit the power the government vested in him and to leverage that power to obtain sexual favors from people he supervised. Here, however, the hospital hired him as an administrative assistant with responsibility for managing continuing education for physicians and other staff. As far as we can tell, Cook County did not vest any power in him: he had no power over other employees and no official reason to interact with job seekers like Almaguer, much less exercise power over them. Until 2007, he had never (so far as anyone knew) impersonated a human resources employee and created a phony position of power out of whole cloth in order to trick unsuspecting citizens. The county did not clothe him in hiring authority—all it did was give him the same kind of access to an office, standard business forms, and the like, that presumably many other white collar hospital employees would have. As the county‘s attorney said during oral argument, Vanaria was essentially an imposter. Thus, even if some kind of sexual misconduct would have been predictable had the county placed Vanaria in a position of power, the county could not have imagined that Vanaria could have pulled off the scheme he did while toiling as an administrative assistant with such a modest portfolio.
In sum, we take the Supreme Court seriously when it instructs us to be wary of imposing municipal liability in circumstances like this. “Where a plaintiff presents a
Our conclusion means two things. First, it means that the decision to hire Vanaria was not the cause of Almaguer‘s injury in anything but the “but for” sense. Brown, 520 U.S. at 410, 117 S.Ct. 1382. It was not, in other words, the “moving force” behind the injury. Monell, 436 U.S. at 694, 98 S.Ct. 2018. Second, and relatedly, it means that the county lacked the requisite mental state of deliberate indifference. For these reasons, we conclude the substantive due process claim was properly dismissed.
C. Title VII
Finally, Almaguer alleges that Cook County violated Title VII,
Almaguer argues that the district court erred because she may proceed under Title VII as a prospective employee. That is, there need not be an established employer/employee relationship before Title VII is implicated. Almaguer is correct, as far as that goes. Section 2000e-2(a) states that an employer engages in unlawful employment practices if it fails or refuses to hire an individual because of that individual‘s race, color, religion, sex or national origin.
But the district court‘s decision did not rest on the mere fact that Almaguer was not a county employee at the time of Vanaria‘s conduct. Instead, the district court seems to have concluded that there was no employer/employee relationship at all, whether past, present or prospective. Section 2000e-2(a)(1), on which Almaguer relies, governs “unlawful employment practices,” and thus before it is implicated there must be some kind of “employment” relationship.
Accordingly, although we agree with Almaguer that a plaintiff need not be presently employed by an employer to invoke Title VII, a plaintiff must at least have been passed over for a job that actually existed before she can claim an “unlawful employment practice” has occurred under
III.
We cannot, of course, condone the conduct of the Cook County employee who attempted to secure sexual favors in exchange for a job that didn‘t exist. Nor do we believe that Cook County‘s method of filling positions through patronage is a model worthy of the civics books. Yet neither can we find that Vanaria‘s conduct is attributable to his employer, the county. Nor can we find the requisite employment relationship required by Title VII. Accordingly, the judgment of the district court is affirmed.
GRIESBACH
DISTRICT JUDGE