Firefighter Loses Sexual Harassment Claim But Can Proceed With Racial Harassment Lawsuit

Danielle Cortes-Devito was the only African-American female who was employed as a paramedic with the Village of Stone Park, Illinois Fire Department. In a lawsuit she subsequently filed, Cortes-Devito alleged that her coworkers repeatedly interfered with her work and humiliated her by engaging in unwelcome and offensive conduct. Specifically, Cortes-Devito alleged that her coworkers made offensive jokes and comments that were racially insensitive in and outside of her presence. She contended that her non-Black coworkers imitated African-American accents and mocked how African-Americans would speak pejoratively.

Cortes-Devito also alleged a variety of specific acts engaged in by her coworkers, including: (1) The placement of human feces in a glass of milk that was found by another Village employee; (2) their continuous alienation from conversations because when she entered a room, conversations would immediately cease; and (3) an instance where she was unknowingly induced to drink a beverage that allegedly contained a urinal cake.

Cortes-Devito’s lawsuit alleged both sexual and racial harassment. When the Village moved to dismiss both claims, the Court’s decision showed how the same set of facts can give rise to one protected-class harassment claim, but not be sufficient to establish another kind of illegal harassment.

First, the Court dismissed Cortes-Devito’s sexual harassment lawsuit. The Court found that Cortes-Devito “failed to meet the threshold that establishes conduct that could conceivably be construed as sexual discrimination. She has not alleged the requisite operative facts that establish, for example, that she was subjected to unwelcome sexual advances, request for sexual favors, or other verbal or physical conduct of a sexual nature, or that any offensive or adverse conduct was based on her gender.” In fact, the Court held that a claim for sexual harassment must be based on evidence establishing that the treatment of an employee was either sexual in nature or was based on the employee’s gender.

The Court refused to dismiss Cortes-Devito’s racial harassment claim. Important in the Court’s decision was that Cortes-Devito alleged that she was the recipient of racially-motivated jokes, comments and gestures, and that her coworkers mocked the way an African-American would speak in a pejorative manner. Though the Court was doubtful as to the ultimate strength of Cortes-Devito’s claims, it noted that “in a motion to dismiss we do not weigh the strength of the evidence; rather we test the sufficiency of the allegations.”

The Court observed that Cortes-Devito “satisfactorily alleges that she endured intolerable employment conditions that her peers of different races did not, and that as a result of her embarrassment, humiliation, and mental anguish, she was unable to return to work. Taken as true, Cortes-Devito could conceivably establish that her working conditions were so unbearable and that her coworkers’ conduct was so egregious that she was forced to resign.”

Cortes-Devito v. Village of Stone Park, 2005 WL 1323385 (N.D.Ill. 2005).

This article appears in the July 2005 issue