In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3262

Rebecca Vela,

Plaintiff-Appellant,

v.

Village of Sauk Village,
d/b/a Sauk Village Police Department,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 C 1199--David H. Coar, Judge.


Argued April 17, 2000--Decided June 22, 2000




  Before Posner, Chief Judge, Fairchild, and
Diane P. Wood, Circuit Judges.

  Fairchild, Circuit Judge. Rebecca Vela,
a female Mexican-American police officer
with the Sauk Village Police Department,
brought this action against the Village
under the Civil Rights Act of 1964, 42
U.S.C. sec. 2000e et seq. ("Title VII"),
and 42 U.S.C. sec. 1983, alleging that,
during the course of her employment, she
suffered disparate treatment because of
her sex and national origin, retaliation
for filing a charge of discrimination
against the Village, and sexual
harassment. The district court granted
summary judgment in favor of the Village.
The two critical issues are (1) whether
Vela can pursue in this Title VII action
a claim of sexual harassment which she
made orally to an agency representative,
but which the representative omitted from
her Equal Employment Opportunity
Commission (EEOC) charge when he typed
it, and (2) whether Vela has sufficiently
shown a genuine issue of fact as to a
Village custom or policy of permitting
sexual harassment so as to impose sec.
1983 liability on the Village. The
district court answered both questions in
the negative, and we affirm.

  Vela has been a police officer for the
Village since April 1993. In November
1997, she filled out an intake form at
the Illinois Department of Human Rights
(IDHR) as a preliminary to an EEOC charge
against the Village. In response to one
question as to the type of discrimination
she wanted to have investigated she
circled "unequal terms and conditions".
She also circled "harassment" and
"failure to promote", but these were
crossed out. She testified that the IDHR
intake officer crossed them out and told
her to initial the cross-outs, although
she had orally informed him of the
conduct she claimed constituted sexual
harassment. In response to a question why
she felt she was discriminated against,
she wrote only "See attached
copies/pages", but those are not in the
record, nor is there testimony describing
their contents.

  Two days later Vela filed with IDHR (an
EEOC designated agency, 29 C.F.R.
sec.sec.1601.74; 1601.80) a charge of
discrimination. On the form she checked
"sex" and "national origin" as bases of
discrimination against her. In the part
of the form asking for the "particulars",
she listed three incidents in which she
was treated differently from non-Mexican
male officers: being required to take a
drug test after an accident with a squad
car, being reprimanded for failing to
follow a work procedure, and being
reprimanded for failing to use "spell
check". The charge, which she testified
was typed by the intake officer, did not
describe the harassing conduct which she
said she had described to him.

  After receiving a right to sue letter,
Vela brought this action. Her complaint
alleged that she had been subjected to
repeated sexual harassment including
widespread distribution of lewd and
lascivious pictures, sexual jokes told to
and about her, lewd and lascivious
gestures, condoms left in the glove box
of patrol cars, repeated comments about
her body, sexual behavior and national
origin./1 Only one item in the
complaint could have reflected the acts
described in the charge, i.e., "Plaintiff
treated differently from male officers in
administrative procedures". She also
alleged that her shift was changed in
retaliation for making a complaint about
sexual harassment. Count I sought relief
under Title VII and Count II claimed a
denial of equal protection and sought
relief under sec. 1983.

  The Village moved for summary judgment,
grounded in part on her failure to
include a claim of sexual harassment in
her EEOC charge, and lack of evidence
that sex discrimination or harassment
resulted from Sauk Village policy. In its
order granting summary judgment, the
district court held that none of the
instances of disparate treatment
described in Vela’s EEOC charge was an
adverse employment action; likewise with
the shift change she alleged was
retaliation. Vela does not challenge
these decisions on appeal. She does argue
that the court erred in refusing to
consider her claim of sexual harassment
because it did not appear in her EEOC
charge, and in holding that she did not
produce evidence of a Village custom or
policy of harassment so that the Village
could be found liable under sec. 1983.

  We review the grant of summary judgment
de novo. See Simpson v. Borg-Warner
Automotive, Inc., 196 F.3d 873, 876 (7th
Cir. 1999).

I.   Failure to charge harassment.

  Vela argues that her charge was
sufficient because she checked "sex" as
the basis of the discrimination against
her, and sexual harassment is a type of
discrimination because of sex. But our
caselaw makes it clear that the charge
must be more specific. "As a general
rule, a Title VII plaintiff cannot bring
claims in a lawsuit that are not included
in her EEOC charge. . . . For allowing a
complaint to encompass allegations
outside the ambit of the predicate EEOC
charge would frustrate the EEOC’s
investigatory and conciliatory role, as
well as deprive the charged party of
notice of the charge." Cheek v. Western
and Southern Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994). "Because an employer
may discriminate on the basis of sex in
numerous ways, a claim of sex
discrimination in an EEOC charge and a
claim of sex discrimination in a
complaint are not alike or reasonably
related just because they both assert
forms of sex discrimination." Id. at 501.

  We acknowledge that a claim in a civil
action need not be a replica of a claim
described in the charge, but there must
be "a reasonable relationship between the
allegations in the charge and the claims
in the complaint," and it must appear
that "the claim in the complaint can
reasonably be expected to grow out of an
EEOC investigation of the allegations in
the charge." Id. at 500. In the case
before us, Vela’s claim of sexual
harassment, stated in her complaint, is
wholly diverse from the claim of
disparate treatment described in her EEOC
charge. It is not reasonably related, and
the charge is therefore not an adequate
predicate for it. See Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 920 (7th
Cir. 2000) (employer’s decision to
terminate worker not reasonably related
to subsequent decision not to rehire
worker during a recall); Novitsky v.
American Consulting Engineers, L.L.C.,
196 F.3d 699, 701-02 (7th Cir. 1999)
(claim of failure to accommodate
plaintiff’s religion not reasonably
related to EEOC charge discussing
discrimination on bases of age and
religion, even where plaintiff described
in intake form an incident that supported
her failure to accommodate theory); cf.
Jenkins v. Blue Cross Mut. Hosp. Ins.,
Inc., 538 F.2d 164, 167-69 (7th Cir.
1976) (en banc) (plaintiff sufficiently
alleged facts supporting claim of sex
discrimination in EEOC charge to proceed
with sex discrimination claim in court,
despite plaintiff’s failure to check the
box for sex discrimination on the
charge).

  There are cases where courts have looked
beyond the four corners of the EEOC
charge form. "Allegations outside the
body of the charge may be considered when
it is clear that the charging party
intended the agency to investigate the
allegations." See Cheek, 31 F.3d at 502,
citing Rush v. McDonald’s Corp., 966 F.2d
1104, 1110-11 (7th Cir. 1992)
(plaintiff’s handwritten "EEOC Affidavit"
submitted the same day as her EEOC
charge) and Box v. A & P Tea Co., 772
F.2d 1372, 1375 (7th Cir. 1985)
(handwritten additions to typed charge).
A later case is Sickinger v. Mega
Systems, Inc., 951 F.Supp. 153, 157-58
(N.D. Ind. 1998) (Charge Questionnaire,
filled out the same day as the charge was
filed, under particular circumstances
where the employer could not claim
surprise at the claim stated fully in the
questionnaire, but not in the charge). In
all three examples, the outside
allegations were in writing. In the case
before us the only document external to
the charge is the intake form, and the
indication thereon that she claimed
harassment was not only crossed out, but
the cross-out was initialed by her.

  Vela argues that she orally informed the
intake officer of the facts of her claim
of sexual harassment, and that in
directing her to cross out the reference
to harassment on her intake form and by
omitting the claim of harassment when he
typed the charge, he misled her. We hold,
however, that an oral charge, if made as
she testified, not reflected in nor
reasonably related to the charge actually
filed, is not a sufficient predicate for
a claim of sexual harassment in her civil
action. 42 U.S.C. sec. 2000e-5(b)
requires that, "Charges shall be in
writing under oath or affirmation" and 29
C.F.R. sec. 1601.9 makes the same
requirement. No case suggests that an
oral statement to an agency
representative is adequate, and notice of
such a statement cannot be expected to
reach the employer./2 See Novitsky, 196
F.3d at 702 (court rejects plaintiff’s
reliance on information written on intake
form but not included in charge, where
plaintiff had opportunity to read charge
and obtain professional advice regarding
it, and signed charge).

II. Failure to prove custom or policy of
Village.

  The Village was the only defendant. Vela
alleged that it committed the acts of
sexual harassment, retaliation, and
disparate treatment complained of "in
accordance with its custom and practice".
It could be held liable for acts of
police department personnel, violating
Vela’s constitutional rights, only "when
execution of [the Village’s] policy or
custom, whether made by its lawmakers or
by those whose edicts or acts may fairly
be said to represent official policy,
inflicts the injury. . . ." Monell v. New
York City Dept. of Social Services, 436
U.S. 658, 694 (1978). Assuming that the
allegation that the acts complained of
were done in accordance with the
Village’s custom and practice was a
sufficient claim of a policy or custom of
sexual harassment and other
discrimination against female police
officers, Vela failed to produce evidence
that such a policy or custom existed.

  "The caselaw has identified three
instances in which a municipality can be
said to have violated the civil rights of
a person because of its policy: (1) an
express policy that, when enforced,
causes a constitutional deprivation; (2)
a widespread practice that, although not
authorized by written law or express
municipal policy, is so permanent and
well settled as to constitute a custom or
usage with the force of law; or (3) an
allegation that the constitutional injury
was caused by a person with final
policymaking authority." Baxter v. Vigo
County Sch. Corp., 26 F.3d 728, 734-35
(7th Cir. 1994) (citations and quotation
marks omitted).

  Vela does not argue that there was an
express policy of sexual harassment or
other discrimination against female
officers. In fact the Village had adopted
an employee manual which prohibited
sexual harassment and threatened
disciplinary action if it occurred.

  Vela did advance two theories to support
the custom or policy contention: (1) the
chief of police and the city manager had
final policymaking authority and the
chief brushed aside her complaints of
harassment by her supervisor and others;
(2) the Village failed to provide
adequate relevant training. One may
question whether the rejection of
complaints as to sexual harassment or
other discrimination would establish a
deliberate adoption of a policy
permitting the practices. But in any
event, plaintiff has not demonstrated
that Illinois law grants final policy
making authority to either of these
officers nor any delegation of such
authority by the Village board.
"Authority to make municipal policy may
be granted directly by a legislative
enactment or may be delegated by an
official who possesses such authority,
and of course, whether an official had
final policymaking authority is a
question of state law." Pembaur v.
Cincinnati, 475 U.S. 469, 483 (1986). The
choice to follow a course of action must
be "deliberate" in order to establish a
policy. Id. Plaintiff fails to establish
a policy under her first theory.

  Plaintiff’s failure-to-train theory is
that liability for constitutional
violations by police officers attaches to
the municipality when the violations
result from lack of training. See Spell
v. McDaniel, 824 F.2d 1380, 1389 (4th
Cir. 1987) and Patzner v. Burkett, 779
F.2d 1363, 1367 (8th Cir. 1985). As
evidentiary support she cites to portions
of several depositions. In them, City
Manager Dieterich testified that there
had not been village-wide instruction on
sexual harassment and that he believed
some of the supervisors might have taken
courses at Village expense but that he
didn’t know for sure. Chief Crafton
testified that he had had training in
sexual harassment prior to 1993 and an
eight hour update, which he had attended
with one of the sergeants, in 1995 or
1996. Sergeant Sanders testified that
during the last five years there had been
no training of sergeants with respect to
sexual harassment that he was aware of.
In a portion of a deposition in a
companion case, but contained in this
record, Sergeant Schwertfeger, the
principal offender according to Vela,
testified that sexual harassment had been
covered in a course he took at
Northwestern University. We conclude that
the testimony just described would not
support a finding that the alleged sexual
harassment resulted from a lack of
training. Plaintiff would have the burden
of proof on that point.

  The judgment appealed from is affirmed.

/1 There is support for one of her allegations.
Vela’s supervisor admitted in his deposition that
he had made one of the offensive remarks about
her, but testified that he didn’t intend it to
get back to her.

/2 Language in Sickinger, 951 F.Supp at 158,
suggests that if a charging party leaves out an
intended claim because of being misled by an EEOC
representative, she would be entitled to tolling
of the period of limitations and could file a
charge containing the omitted claim later than
otherwise required. See Early v. Bankers Life and
Cas. Co., 959 F.2d 75, 81 (7th Cir. 1992). We
would not agree, however, that a claim orally
communicated to the agency, but omitted through
the latter’s fault could, simply on that account,
be treated as if properly filed.
