A federal judge tossed a discrimination suit filed by a southwest-suburban firefighter who alleged sexual harassment by supervisors.
Judge Harry D. Leinenweber ruled March 9 to dismiss with prejudice Justin Bakker’s complaint, which alleged his superiors at Mokena Fire Protection District “made comments to him that constituted continuous acts of sexual harassment and discrimination” and “targeted him by calling his sexual orientation into question.”
Bakker, who is straight, alleged three incidents between December 2015 and August 2018 in which different supervisors teased or ridiculed him by implying he was gay.
Bakker addressed two of the incidents with his union representative and noted he was so distressed by the comments that he took medical leave after the third occurrence.
Bakker filed a charge of discrimination with the Equal Employment Opportunity Commission alleging sex discrimination and sexual harassment in June 2019, but it was dismissed. He then filed the present action in court in August under Title VII of the Civil Right Act.
Leinenweber granted the fire department’s motion to dismiss after finding the statute of limitations had expired.
In order to successfully pursue a charge of discrimination by creating a hostile work environment, Leinenweber wrote, the plaintiff must file an EEOC complaint within 300 days of the individual incident unless multiple incidents can be proven to form a pattern — in which only the latest one needs to fall within that window.
Because Bakker waited until June 2019 to file his complaint, he needed to show the three incidents were a related pattern in order for more than the August 2018 incident to qualify.
“Acts so discrete in time or circumstances that they do not reinforce each other cannot reasonably be linked together into a single chain,” Leinenweber wrote.
All three alleged incidents were perpetrated by separate managers. Although they all alleged the same type of inappropriate conduct, more than two years separated the first and second incidents, which Leinenweber ruled is “is too long a gap to support a continuing violation.”
While the second and third incidents took place about a month apart, they involved different managers.
Therefore, the judge held, only the August 2018 incident was deemed admissible within the statute of limitations.
But in order to prove the August incident constituted actionable harassment, Bakker had to prove four criteria: that he was subject to unwelcome harassment, that the harassment was based on sex, that the harassment was so severe or pervasive as to alter the conditions of employment and create a hostile or abusive working environment and that there is a basis for employer liability.
Leinenweber ruled that “even if everything Bakker claims is true, the August 2018 incident on its own falls short of the 7th U.S. Circuit Court of Appeals’ standard to establish employer liability.”
He wrote that “off-color comments, isolated incidents, teasing, and other unpleasantries that are unfortunately not uncommon in the workplace” don’t cross the legal line.
Bakker also brought a claim of intentional infliction of emotional distress, claiming his treatment caused him to suffer from PTSD, depression, anxiety, panic attacks, and sleeplessness.
However, since the Illinois Human Rights Act preempts all state law claims for civil rights violations, including intentional infliction of emotional distress claims, Bakker’s claim fails because “it is obvious that Bakker’s Tile VII claim and his IIED claim are rooted in the same set of facts,” Leinenweber wrote. Since the failed Illinois Human Rights Act claim preempts Bakker’s intentional infliction of emotional distress claim, it was also dismissed.
Bakker was represented by sole practitioner Albert F. Ferolie and Jason Harris Sherwood of Sherwood Law Group. They did not return a request for comment.
The Mokena Fire Protection District was represented by Kathryn F. Siegel and Jenna Kim of Littler Mendelson P.C., who declined to comment.
The case is Justin R. Bakker v. Mokena Fire Protection District, No. 19 C 5586.