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Krystal Wilson v. Cook County. County Not Liable for employee's actions
Krystal Almaguer (now Wilson) was an out-of-work massage therapist, and she interviewed for a job at Oak Forest Hospital, which is part of the Cook County Bureau of Health Services. Unfortunately, there was no job, and the interview was merely part of a ruse by Felice “Phil” Vanaria. Vanaria was a political appointee and had no authority to do job interviews. He used the bogus job interview to convince Almaguer to give him erotic massages and engage in sexual contact.
This wasn't the first time that Vanaria had been accused of using his county job to get sexual favors. From 1984-1989, he had been employed by the Cook County Adult Probation Department, and he reported to the Chief Judge of the Cook County Circuit Court. During that time, numerous female probationers alleged that he offered to give more favorable probation conditions in exchange for sexual favors. After an investigation, Vanaria was fired, and he spent the next four years working in a casino.
But in 2002, Vanaria decided to cash in his political contacts and try for another job on the county payroll. He landed a job as administrative assistant to Cook County Commissioner Jospeh Moreno. Moreno later testified that he was in the dark about Vanaria's prior alleged misconduct, and he admitted that he didn't do any background check on his own. He claimed that he relied on the county human resources department to do the criminal checks. He also said that loyalty was one of the most important qualifications, and Vanaria had shown that he was loyal when it came to politics and fundraising.
After two years, Moreno recommended Varnia for a job at the county hospital, and Varnia started working there in 2005. As part of the job process, Varnia had a criminal background check, and was even fingerprinted. But nobody bothered to find out why he was fired from the probation department.
Ostensibly, Vanaria's political job involved setting up continuing education programs for staff. In 2005, a representative of Eli Lilly & Co. came forward to say that he had tried to condition her participation in one of those programs on her giving him a massage. After some investigation, the outcome was that Varnia was merely told to stay away from her.
In 2007. Varnia contacted Krystal Almaguer through a mutual acquaintance. She was currently out of work, and he lured her into the hospital by telling her that there might be some jobs open. She went to the hopsital to give him a resume, and he offered her a $52,000 job right on the spot, as a physical therapist. She told him that she didn't have a degree in physical therapy, but he told her that he could make things happen because certain people owed him favors.
Varnia was convincing, and he even gave Almaguer real papers to fill out, and the whole ruse had most of the hallmarks of a real job interview. Almaguer went home with the belief that she had actually applied for a job. Vanaria later called her back with the good news that she should come in, and bring her Social Security card and birth certificate. When she arrived, he asked her to close the door.
But rather than looking at the Social Security card, he then instructed her that if she "truly wanted the job", she would have to do a bit more. She would need to kiss and massage him. Ultimately, she took off her clothes, and Varnia kissed her.
After some more discussion, Almaguer reluctantly agreed to have Varnia visit her at her home massage studio, where the two removed their clothes and Almaguer acceded to Varnia's request that she "manually stimulate him," as the court put it.
The next week, Varnia decided that he wanted more stimulation, so he had a female friend to pose as an HR employee and call Almaguer. The friend said that there had been two changes in the job. The good news was that the new job would pay $10,000 more. But the bad news was that it required that Almaguer get another massage. At this point, Almaguer suspected that something was wrong. She called the hospital's real HR department, and they told her that they had never heard of the job in question. Almaguer's next call was to the Orland Park Police Department, and Vanaria pleaded guilty to official misconduct and bribery.
Almaguer then filed a civil rights lawsuit against Cook County. Federal Judge Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois tossed the case out, and Almaguer appealed to the U.S. Court of Appeals for the Seventh Circuit.
The County had first argued that Vanaria's first position as a probation officer was actually a state job rather than a county job. Therefore, the county had very little opportunity to know about those earlier charges. But Almaguer argued that the county had turned a blind eye to Varnia's behavior after he started working for the hospital, and that this was sufficient for her claim. But the Court of Appeals agreed with the county that these few incidents didn't come close to establishing a custom or policy of sexual harassment. Since county policy was not the "moving force" behind what happened, there was no liability for the county.
The Court of Appeals also took note of the fact that the County had not given Varnia any power over staff. He didn't have any real power to hire, and he had no official reason to have the "interviews" he conducted. The County did nothing other than give him a normal office and access to normal business forms. He was essentially in imposter.
The Court of Appeals had to concluded that the lower court had correctly thrown out the case against the county, since there was no basis for liability. It did made clear, however, that it didn't condone Varnia's conduct. And the appeals court even went so far to say that it didn't believe that "Cook County's method of filling positions through patronage is a model worthy of the civics books." But in this case, Varnia's conduct was not attributable to the County.
No. 13-1464 (7th Cir. Feb. 10, 2014).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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