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Sturm-Sandstrom v. County of Cook: US District Court : EMPLOYMENT LAW - evidence showed fact issues allowing gender discrimination finding

Wendy Sturm‐Sandstrom,
Civil No. 06‐3768
The County of Cook,
Tammy P. Friederichs and Stephen M. Thompson, Friederichs &
Thompson, P.A. for and on behalf of Plaintiff.
Dyan J. Ebert and Melinda M. Sanders, Quinlivan & Hughes, P.A. for and
on behalf of Defendant.
This matter is before the Court on Defendants motion for summary
I. Background
Plaintiff Wendy Sturm‐Sandstrom was initially hired by Defendant Cook
County (hereinafter the County) in 2001 to fill a temporary clerical worker
position in the Planning and Zoning Office. In December 2001, Plaintiff was
hired as the Countys Jail Administrator/Dispatch Supervisor. A requirement of
this position was to have a Peace Officers Standards and Training (POST)
license and to carry a firearm, as the duties of this position required that she have
contact with, and transport, prisoners. In December 2003, Plaintiff was assigned
to an Out of Class/Temporary Assignment Deputy position, and she was hired as
a full time Deputy in May 2004. She resigned this position in November 2004.
On or about August 4, 2005, Plaintiff filed a charge of sex discrimination
with the EEO. In this charge, Plaintiff alleged that she was constructively
discharged, that she filed a harassment complaint in June 2004 after she was
reprimanded for unprofessional conduct and disruption to the workplace, and
after filing the harassment complaint, Plaintiff was questioned about her
involvement in an investigation involving the Border Patrol. Plaintiff also
included in her charge an allegation that she was not paid at the same rate as a
similarly situated male deputies for work as a temporary deputy. Sanders Aff.,
Ex. 30.
A Right to Sue letter was issued to Plaintiff in June 2006, and this action
was then filed in September 2006. In her Complaint, Plaintiff alleges she was the
victim of sex discrimination in violation of Title VII and the Minnesota Human
Rights Act (MHRA). Plaintiff alleges that during her employment at the
County, she was subjected to gender discrimination and harassment. She alleges
that she was the only female deputy and that she was treated differently than
male deputies and was not paid the same as her male counterparts. Complaint,
13. She further alleges that she complained of discrimination and harassment,
and was further discriminated against and harassed in response. Id. 14. She
also alleges that she was constructively discharged in November 2004, and that
she was replaced by a male. Id. 17‐18.
The County has moved for summary judgment, asserting that Plaintiff
cannot establish a claim of disparate treatment, hostile work environment or that
she was constructively discharged.
II. Standard
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non‐moving party, there is no genuine issue as to any material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322‐23 (1986). The party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. This burden can be met by showing ‐
that is, pointing out to the district court ‐ that there is an absence of evidence to
support the nonmoving partys case. Id. at 325. The party opposing summary
judgment may not rest upon mere allegations or denials, but must set forth
specific facts showing that there is a genuine issue for trial. Krenik v. County of
Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).
III. Analysis
A. Timeliness
Under Title VII, a plaintiff must file a charge with the EEO within 300 days
of an unlawful practice. With respect to her MHRA claim, the time period is one
year. Thus, Plaintiff is time‐barred from asserting any claim based on a discrete
act that occurred prior to August 4, 2004. Ledbetter v. Goodyear Tire & Rubber
Co., Inc., 550 U.S. ___, 127 S.Ct. 2162 (2007). In opposition to the Countys motion
for summary judgment, Plaintiff argues only that her claims of constructive
discharge and hostile work environment should be allowed to proceed to trial.
There is no dispute that Plaintiffs claim of constructive discharge is timely.
Furthermore, the Court will consider evidence concerning events that occurred
prior to August 4, 2004, as such evidence is relevant to both the constructive
discharge and hostile environment claims pursuant to the continuing violations
doctrine. See Mems v. City of St. Paul, Dept. of Fire and Safety Services, 327 F.3d
771, 785 (8th Cir. 2003).
B. Disparate Treatment/Constructive Discharge
The elements of a prima facie case of disparate treatment are that 1)
plaintiff is a member of a protected class; 2) she was qualified for the job; and 3)
she suffered an adverse employment action under circumstances giving rise to an
inference of discrimination. Whitley v. Peer Review Systems, Inc., 221 F.3d 1053,
1055 (8th Cir. 2000).
The County asserts that it is entitled to summary judgment on this claim as
Plaintiff has failed to show that she suffered an adverse employment action
under circumstances giving rise to an inference of discrimination based on
gender. Plaintiff argues that summary judgment should be denied, as there are
genuine issues of material fact as to whether she was constructively discharged.
To prove a claim of constructive discharge, Plaintiff must show that the
County deliberately created intolerable working conditions with the intention of
forcing her to quit her job. Johnson v. Bunny Bread, 646 F.2d 1250, 1256 (8th Cir.
1981). It is not enough to demonstrate that an employer made work conditions
less enjoyable or more stressful. See eg., Hanenburg v. Principal Mut. Life Ins.
Co., 118 F.3d 570, 574‐575 (8th Cir. 1997) (being held to high attendance standards
and close scrutiny of work and phone use not enough to support a finding that
supervisors conduct created the compulsion to quit that is necessary for a
constructive discharge.). Furthermore, Plaintiff can satisfy the intent
requirement with proof that her resignation was a reasonably foreseeable
consequence of her employers discriminatory actions. Id. at 575.
The County asserts there is no evidence that Sheriff Wirt or others in the
Sheriffs department deliberately created intolerable working conditions with the
intention that she quit her job. Plaintiff admitted that she began to look for new
employment as early as August 2004 and continued working until November 26,
2004. Even after she found new employment, Plaintiff gave two weeks notice.
Sanders Aff., Ex. 8. These facts establish that at most, Plaintiffs working
conditions may have been unpleasant, but not intolerable.
The County further asserts that Plaintiff has not demonstrated that she was
treated differently based on her gender. Instead, there is evidence to suggest that
Plaintiffs personal issues are the likely reason she was treated as she was. For
example, there were many ongoing issues concerning Plaintiff, her husband and
another deputy, Pat Eliason. Allegations of improprieties circulated the
workplace concerning Eliason and Plaintiff. Plaintiffs Dep. at 35‐36. In addition,
Plaintiffs husband, who was also a deputy, began an affair, and circulated a
letter to co‐workers in July 2004, admitting to the affair and asking that Plaintiff
not be blamed. Sanders Aff., Ex. 15. There is also evidence that Plaintiff did not
get along with the female dispatchers. The fact that she did not get along with
female co‐workers, however, does not establish gender discrimination. Finally,
the County asserts that Plaintiff was replaced by another woman, a fact that
weighs against her claim of gender discrimination.
Plaintiff responds that summary judgment should be denied, as the record
is replete with evidence that she was subjected to a sexist work culture, fostered
by Sheriff Wirt, and that this sexist work culture created intolerable working
conditions for her throughout the time she was a patrol deputy.
First, Plaintiff alleges that prior to her employment, Sheriff Wirt had
demonstrated a discriminatory animus toward women. In support, Plaintiff has
submitted the affidavit of Peg McMahon, who was the only female deputy with
the County from 1994 to 2001. McMahon Aff., 2. McMahon states that during
her employment, Sheriff Wirt made many derogatory comments to her, subjected
her to differential treatment that was humiliating and degrading, and provided
male deputies training and opportunities that she was not provided. Id. 7‐24.
Plaintiff has also submitted an affidavit from John Lyght, Wirts predecessor as
Sheriff of Cook County. Lyght personally observed Wirt interact with Ms.
McMahon, and noted that Wirt treated male deputies differently than he did Ms.
MacMahon. Lyght Aff., 7. Lyght also stated that he was told by deputy Doug
Rude that Wirt was up to his old tricks in that he was harassing Plaintiff. Id.
12. Lyght thereafter confronted Wirt, who told Lyght that women dont belong
in law enforcement. Id. 13.
In addition, Plaintiff alleges that she was not provided the same training
opportunities as male deputies. For example, she complains that she was not
provided training as to the operation of the intoxilizer equipment. Plaintiff Dep.
at 150. As a result, if she stopped someone on suspicion of driving under the
influence, she had to call a male deputy to administer a breath test. Id. at 194.
Plaintiff further alleges that she was not given the same equipment as the male
deputies, such as a camera or evidence locker, and that the male deputies were
condescending to her, or would stop talking when she walked into a room. Id. at
151‐152. In response, the County asserts that Plaintiff was provided as much
training as other male deputies. See, Sanders Aff., Ex. 11 (demonstrating the
number of training hours provided, but not the type of training). It does not
appear, however, that Plaintiff is complaining of the number of hours of training
she received. Rather, she is challenging the type of training she was allowed to
participate in, and intoxilizer training would be important training for a patrol
Plaintiff also alleges that during her employment as a deputy, she was
excluded from many social activities that took place both during and after work.
For example, she was excluded from Fantasy Football leagues and other social
events, like campfires, and her co‐workers would talk about these activities
around her, even though she wasnt invited to participate. Plaintiff Dep. at 149‐
151. She also felt ostracized by the male deputies when they would either stop
talking or leave the room when Plaintiff would enter. Id. at 151‐152.
Plaintiff asserts that another example of sexist treatment occurred as a
result of incidents that took place on the night of June 12, 2004. On that night,
Plaintiff admittedly abandoned her shift for approximately 39 minutes, because
she felt that the other deputy on duty, Joe Zallar, refused her assistance on a
pursuit, apprehension and processing of a fleeing suspect because she was a
woman. Plaintiff later received a written reprimand for abandoning her shift.
Sanders Aff., Ex. 16. On June 17, 2004, Plaintiff filed an official grievance in
response to the written reprimand, asserting she was discriminated against on
the basis of sex and asking that the reprimand be removed from her personnel
file. Plaintiff Ex. V. She also filed a sexual discrimination complaint with
personnel on that same date. Sanders Aff., Ex. 18.
Sheriff Wirt denied her grievance, explaining that she was reprimanded
because her conduct on June 12 was disruptive to the workplace and was
unprofessional. Sanders Aff., Ex. 17. Thereafter, Plaintiff filed a step two
grievance, which was reviewed by the personnel director, Janet Simonen. Ms.
Simonen informed Plaintiff that after reviewing Plaintiffs written statement,
speaking with Sheriff Wirt as well as a number of Sheriff Department employees,
she supported Sheriff Wirts action to issue Plaintiff a written reprimand.
Plaintiffs Ex. W.
Her sex discrimination complaint was also investigated by Ms. Simonen
and the Cook County Attorney Bill Hennessy. See Id., Ex. 20. Their investigation
included a review of Plaintiffs written summary dated June 18, 2004 and of a
letter from Plaintiff to a Mr. Davy, as well as interviews with a number of
individuals with knowledge concerning the incident in question, as well as the
1This grievance was ultimately withdrawn, however.
radio log. Id., p. 1. In a six page, single spaced report, the Plaintiff was informed
of the results of this investigation, and the bases for the conclusion that the
Plaintiff was not discriminated against on the basis of sex. Id. It is Plaintiffs
position that this investigation was a sham, however, as she was never personally
After her step two grievance was denied, Plaintiff proceeded to a step three
grievance. A hearing was thereafter held on September 14, 2004.1 At this
hearing, Plaintiff was accompanied by union representative Sarah Lewerenz. In
a letter dated September 17, 2004, Ms. Lewerenz notified the Cook County Board
of her concerns regarding comments Sheriff Wirt made to her and the Plaintiff at
the end of the grievance hearing. Plaintiffs Ex. X. According to Ms. Lewerenz,
as she was leaving the hearing room, Sheriff Wirt had indicated that he would be
talking to Plaintiff about other matters. Id. Ms. Lewerenz responded that she
would like to be present when he did so, and that this appeared to anger the
Sheriff. Id. Ms. Lewerenz then indicated that the union would not tolerate
Sheriff Wirt again harassing a female deputy. Id.
Plaintiff asserts that this exchange between Wirt, Plaintiff and Ms.
Lewerenz at the September hearing marked the beginning of the end of her job.
It is Plaintiffs position that shortly after the hearing, Sheriff Wirt increased the
pressure on Plaintiff by imposing unwarranted criticism on her, responding to
Plaintiffs concerns with condescending memoranda, questioning her
involvement in an investigation with the Border Patrol, padding her personnel
file and not treating her in a courteous manner. Plaintiff Dep. 199‐200; 215‐216;
Exs. AA, DD, EE, FF.
Although she did admit to looking for new work in August 2004, Plaintiff
asserts that she did not quit her position with the County at that time because of
financial reasons. She was in the process of getting a divorce, and for her and her
childrens financial well being, she did not feel she could quit her job. Plaintiffs
Dep. at 234‐235.
Finally, Plaintiff has alleged that she was not paid at the same rate as male
deputies. This assertion is based on the fact that an error with respect to
Plaintiffs pay occurred for the period May 16‐29, 2004, and that the County
issued Plaintiff a check to cover the error. It is Plaintiffs position although the
County did issue her a check for the incorrect pay differential, the County only
paid her after she brought an EEO claim.
Viewing the evidence in the light most favorable to Plaintiff, the Court
finds that Plaintiff has easily met her burden of demonstrating genuine issues of
material fact as to whether she was subjected to intolerable working conditions
under circumstances from which a jury could infer gender discrimination. The
fact that Plaintiff was replaced by a woman may be relevant to her claims, but it
is not dispose of such claims. See Walker v. St. Anthonys Med. Ctr., 881 F.2d
554, 558 (8th Cir. 1989) (finding it entirely conceivable that a woman discharged
and eventually replaced by another woman may be able to establish that she was
the object of impermissible discrimination related to her gender.) Given the
evidence of gender animus put forward by Plaintiff, it is conceivable in this case
that a jury could find that Plaintiff was intentionally discriminated against on the
basis of her sex, and that such intentional discrimination created intolerable
working conditions. Accordingly, as to Plaintiffs constructive discharge claim,
summary judgment must be denied.
2. Hostile Environment
The elements of a sexual harassment claim are that: 1) plaintiff is a member
of a protected group; 2) she was subjected to unwelcome sexual harassment; 3)
the harassment was based on sex; and 4) such harassment affected a term,
condition or privilege of her employment. Okruhlik v. University of Arkansas,
395 F.3d 872, 881 (8th Cir. 2005). To be actionable, the harassment must be
sufficiently severe or pervasive to create an objectively hostile work
environment. Bunda v. Potter, 369 F.Supp.2d 1039, 1054 (N.D. Iowa 2005)(citing
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1047 (8th Cir. 2005)). [T]he
environment must be more than merely offensive, immature or unprofessional; it
must be extreme. Id. (citing Alagna v. Smithville R‐II Sch. Dist., 324 F.3d 975,
980 (8th Cir. 2003)). If the plaintiff does not subjectively perceive the
environment as abusive, then the conduct has not altered the conditions of
employment. Id.
In this case, the same evidence and factual disputes relevant to whether
Plaintiffs working conditions were intolerable are relevant to whether Plaintiff
was subjected to harassment that was sufficiently severe or pervasive to create an
objectively hostile work environment.
The County argues it is nonetheless entitled to summary judgment on this
claim as there is no dispute that it took timely and appropriate action following
receipt of her claims. Plaintiff does dispute this contention, asserting that despite
undergoing investigations of her claims, Plaintiff was not questioned directly.
Sheriff Wirt did not speak with her personally before issuing the written
reprimand, and Ms. Simonen did not speak with her personally before denying
her step two grievance or her discrimination claim. Plaintiff Dep. at 75, 183‐184;
Sanders Aff., Ex. 21.
The Court agrees that genuine issues of material fact preclude summary
judgment as to Plaintiffs hostile work environment claim.
IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment
[Doc. No. 20] is DENIED as to the claim of constructive discharge and hostile
work environment.
Date: May 13, 2008
s / Michael J. Davis
Michael J. Davis
United States District Court


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