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DAULO v. COMMONWEALTH EDISON

July 12, 1995

JESUS DAULO, Plaintiff,
v.
COMMONWEALTH EDISON, PHILIP STACHELSKI, DONALD COOK, THOMAS COOK AND ANTHONY BROCCOLO, Defendants.



The opinion of the court was delivered by: JAMES H. ALESIA

 Plaintiff Jesus Daulo filed a five-count First Amended Complaint ("Complaint") alleging, in short, race discrimination on the part of defendants Commonwealth Edison [sic] (plaintiff's employer) and Philip Stachelski, Donald Cook, Thomas Cook, and Anthony Broccolo (plaintiff's supervisors in one capacity or another). *fn1" Count I alleges race discrimination in violation of 42 U.S.C. § 1981. Count II alleges retaliation in violation of 42 U.S.C. § 1981. Count III alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. Count IV alleges retaliation in violation of Title VII. Count V is a supplemental claim alleging intentional infliction of emotional distress.

 Defendants have filed two motions attacking the pleadings: a motion to dismiss for failure to state a claim, FED. R. CIV. P. 12(b)(6), and a motion to strike certain allegations, FED. R. CIV. P. 12(f).

 I. BACKGROUND

 The following background is drawn from the Complaint, taken as true for purposes of these motions. From 1978 through the present, plaintiff, a "non-white male of Filipino descent," was an employee of Commonwealth Edison, working at the Zion Nuclear Generating Station in Zion, Illinois. The individual defendants were in various supervisory positions over plaintiff. Over the course of his employment, plaintiff was consistently promoted with accompanying increases in responsibility.

 Problems began around 1984 when defendant Stachelski assigned plaintiff to fish for him, clean the fish, and put the fish in Stachelski's truck. Plaintiff objected, but Stachelski told plaintiff he was the best fisherman because he was Filipino. No white co-worker ever had to fish for Stachelski. In approximately 1992, plaintiff began to refuse to fish, and defendant Stachelski made derogatory ethnic remarks toward plaintiff, and said he could get him fired. Plaintiff had to continue fishing through at least February 1993. The derogatory remarks toward plaintiff continued through July 1994, when plaintiff went on medical leave. Starting approximately 1992, plaintiff experienced physical, stress-related symptoms resulting from stress caused by his experience.

 Plaintiff in late 1992 began to keep a diary of abusive and discriminatory behavior, occurring one to three times per month. Plaintiff was ridiculed for his accent. He also was accused of on-the-job errors actually made by white co-workers, resulting in demotion, retraining, and a shift transfer. Other instances included not being allowed to park in the reserved parking area while white co-workers were afforded that privilege. Furthermore, despite an order to the contrary by the Illinois Department of Labor, Commonwealth Edison never provided plaintiff access to his personnel file.

 Plaintiff claims in 1993 and 1994 to have had three work-related injuries due to stress from the above. On July 14, 1994, he was hospitalized for acute psychotic depression. He is under the care of a physician and is on medical leave.

 Defendants' motions are considered in turn.

 Defendants raise several theories: (1) that defendants Broccolo, Thomas Cook, and Montes should be dismissed from Counts I and II under Section 1981 for their lack of personal involvement in the alleged discriminatory acts; (2) that Count II, for retaliation under Section 1981, fails to state a claim for Section 1981 retaliation; (3) that all the individual defendants should be dismissed from Counts III and IV under Title VII because they are not "employers" subject to Title VII liability, and, in any event, were not named in the EEOC charge; (4) that Count IV for retaliation under Title VII fails because it is not "like or reasonably related to" the allegations in the charge filed with the Equal Employment Opportunity Commission; and (5) that Count V for intentional infliction of emotional distress fails to state a claim, and, as regarding defendant Commonwealth Edison, is barred by the exclusivity provisions of the Illinois Workers' Compensation Act, 820 ILCS 305/5(a), 305/11.

 A Rule 12(b)(6) motion focuses on the allegations in the Complaint. Beam v. IPCO Co., 838 F.2d 242, 244 (7th Cir. 1988). The court "must accept as true all the plaintiff's well-pleaded factual allegations and inferences reasonably drawn from them." Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). Claims can only be dismissed if it appears beyond doubt that plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) (footnote omitted).

 A. Section 1981 Allegations Against Broccolo and Thomas Cook

 1. Section 1981 Liability

 42 U.S.C. § 1981(a) provides:

 
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

 42 U.S.C. § 1981(a). Section 1981(b), an addition of the Civil Rights Act of 1991, makes clear that "the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b).

 Section 1981 liability against an individual demands personal involvement in discrimination. Musikiwamba v. Essi, Inc., 760 F.2d 740, 753 (7th Cir. 1985); see also Johnson v. Resources for Human Development, Inc., 843 F. Supp. 974, 978-79 (E.D. Pa. 1994). No personal liability may be imposed on a corporate official "when that official is not alleged to have participated in the actual discrimination against the plaintiff." Musikiwamba, 760 F.2d at 753. Plaintiff does not dispute this point of law. (See Plaintiffs' Response ...


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