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DAULO v. COMMONWEALTH EDISON

September 11, 1996

JESUS DAULO, Plaintiff,
v.
COMMONWEALTH EDISON, PHILLIP STACHELSKI, and DONALD COOK, Defendants.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on Defendants Commonwealth Edison and Donald Cook's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, Defendant Phillip Stachelski's motion to dismiss one count of the amended complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b), and Defendants' motion to strike. For the reasons set forth below, the motion for summary judgment and the motion to dismiss are allowed; the motion to strike is denied.

 I. BACKGROUND

 A. Facts

 Plaintiff Jesus Daulo is a male of Filipino descent. Daulo was employed by Defendant Commonwealth Edison (ComEd) at its Zion Nuclear Generating Station (Zion Station) in Zion, Illinois. Daulo began his employment with ComEd in 1978 as a "Station Man" in the Operating Department at the Zion Station. Daulo held that job until 1980. From March 1980 to September 1980, Daulo was a "Helper" in the Mechanical Maintenance Department. Beginning in September 1980, Daulo advanced to a "B Mechanic" in that department. In May 1983, Daulo was promoted to an "A Mechanic." *fn1" Daulo remained in that position for the remainder of his employment at ComEd. Incidentally, the mechanics are represented for collective bargaining purposes by the International Brotherhood of Electrical Workers (the Union).

 Defendant Phillip Stachelski is the Supervisor -- the lowest level of management -- on the evening shift in the Mechanical Maintenance Department at Zion Station. Daulo was required to report to Stachelski.

 Throughout the course of his employment on the evening shift, Stachelski ordered Daulo to fish for him during working hours in the "forebay" on Lake Michigan adjacent to Zion Station. A white employee named Joe Zurawski occasionally accompanied Daulo on his fishing expeditions -- Daulo caught the fish, Zurawski cleaned them. Daulo never complained to or informed anyone in ComEd or the Union regarding Stachelski's orders requiring him to fish.

 On November 2, 1993, Stachelski ordered both Daulo and Zurawski to extend their hands with the palms down. Once their hands were in position, Stachelski slapped them in front of approximately 14 people. On a separate occasion, Stachelski again slapped the hands of Daulo. Daulo never complained to or informed anyone in ComEd or the Union about the hand-slapping incidents.

 On three occasions between September 1993 and November 1993, Stachelski threatened to discipline Daulo for failing to wear safety equipment. The threatened disciplinary measures never materialized, however -- Daulo was never "written up" for the safety violations. Daulo never complained to or informed anyone in ComEd or the Union about Stachelski's threats.

 Stachelski also directed numerous derogatory comments at Daulo. For instance, Stachelski called Daulo a "flip," which apparently is a derogatory reference to his Filipino heritage. On several occasions, Stachelski told Daulo that he had just "finished reading his obituary." Daulo interpreted that comment as a reference to his personnel file, which would contain any disciplinary records, performance records, or any other documents reflecting negatively on Daulo. Additionally, Stachelski told Daulo on more than one occasion: that he wanted to make him sweat for his money; not to commit suicide if he (Stachelski) was on duty; that he was being monitored; and that he (Stachelski) could get him fired because he had the power from downtown. With the exception of the "obituary" comment, Daulo never informed anyone from ComEd or the Union about the comments.

 Unfortunately, Daulo's performance was not always up to par.

 In March 1991, Daulo received a one-day suspension without pay for deliberately crossing a radiation protection barrier.

 The year 1993 was a particularly bad year for Daulo. In February 1993, Daulo, as lead mechanic, constructed a scaffold of inferior materials and lacking in many respects over an open hole 25 feet deep. The scaffold lacked kick boards and handrails, had three holes in the floor, and was secured to a piece of electrical conduit. Needless to say, the scaffold failed to comply with OSHA standards and ComEd specifications. A meeting was held between Daulo, the Union steward, a General Supervisor, and Defendant Donald Cook -- the "Master Mechanic" *fn2" -- to discuss the improperly constructed scaffold. Cook counseled Daulo about the problem and provided him with written materials on scaffold building to review.

 In June 1993, Daulo was lead mechanic on an assignment to remove a "manway" cover from a single tank located on the 542 elevation of the auxiliary building. Instead of going to the 542 elevation, however, Daulo went to the 560 elevation. Once there, he opened two tanks. Daulo wrote on his work package that he worked on one tank on the 542 elevation. Subsequently, a meeting was held between Daulo, Cook, and two Union stewards. Cook informed Daulo of the problem of working on equipment that is not "out-of-service." Cook also discussed Daulo's prior performance errors, including the March 1991 suspension and the February 1993 scaffold incident. Cook explained that if Daulo continued to make such errors, disciplinary action would ensue.

 Finally, in November 1993, Daulo, as lead mechanic, was assigned to replace valve bonnet gaskets on two check valves which were part of a pumping system. Daulo worked on flanges instead of check valves. Once again, Cook counseled Daulo regarding the incident.

 Following the November 1993 incident, Cook determined that there were serious deficiencies in Daulo's work. Cook consulted with ComEd's Human Resource personnel to discuss possible courses of action. Cook was informed that he had grounds to terminate or demote Daulo. Instead of termination or demotion, however, Cook and the Union agreed that they would prefer to retrain Daulo. As part of the retraining process, Daulo was transferred from the evening shift to the day shift. There were more "Super A Mechanics" on the day shift who were available to provide training and guidance to lower ranked mechanics.

 Cook, the Union, and Daulo met to discuss the determined course of action. Cook informed Daulo that he would be transferred to the day shift and retrained. Daulo indicated that he would like to receive additional training in relief valves, motor operated valves, scaffold building, crane operations, micrometer usage, and self-checking. Daulo was scheduled to attend training in September 1994.

 In February 1994, Daulo filed a charge of racial discrimination against ComEd with the Equal Employment Opportunity Commission. Daulo has been on medical disability leave as a result of major depression and a paranoid delusional disorder since July 1994.

 B. Judicial Proceedings

 On November 11, 1994, Daulo filed a complaint in this Court. The complaint was amended on March 31, 1995. The amended complaint was brought against ComEd, Stachelski, Donald Cook, Thomas Cook, and Anthony Broccolo. The five-count complaint alleged against all five defendants: (1) racial discrimination in violation of 42 U.S.C. § 1981; (2) retaliation in violation of § 1981; (3) racial discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (4) retaliation in violation of Title VII; and (5) intentional infliction of emotional distress in violation of Illinois state law.

 In July 1995, this Court concluded that Daulo's complaint failed to state any causes of action against Thomas Cook or Broccolo; thus, they were dismissed from this matter. Daulo v. Commonwealth Edison Co., 892 F. Supp. 1088 (N.D. Ill. 1995). Count IV (retaliation in violation of Title VII) was also dismissed. Id. As to the remaining three defendants, count III (racial discrimination in violation of Title VII) was dismissed with respect to Stachelski and Donald Cook, but remained against ComEd. Id., see Williams v. Banning, 72 F.3d 552 (7th Cir. 1995) (only the employer can be sued under Title VII). Finally, Daulo recently voluntarily dismissed count II (retaliation in violation of § 1981).

 II. DISCUSSION

 This matter is now before the Court on Defendants ComEd and Cook's motion for summary judgment on counts I (racial discrimination in violation of § 1981), III (racial discrimination in violation of Title VII), and V (intentional infliction of emotional distress in violation of Illinois state law). This matter is also before the Court on Defendant Stachelski's motion to dismiss count V (intentional infliction of emotional distress) for lack of jurisdiction and Defendants' motion to strike.

 Following a brief discussion regarding the motion to strike and a statement of the standard of review applicable to summary judgment motions, the Court will analyze the Title VII claim against ComEd first, then the § 1981 claim against ComEd, Cook, and Stachelski and finally the intentional infliction of emotional distress claim against ComEd, Cook, and Stachelski. *fn3"

 A. Motion to Strike

 Local General Rule 12(M)(3) mandates the party seeking summary judgment to file a "statement of material facts" as to which there is no dispute. The Rule 12(M)(3) statement is to consist of short numbered paragraphs with citation to the appropriate part of the record which supports the movant's assertion that the fact is undisputed. The opposing party must then file a Rule 12(N)(3)(a) response which addresses in numbered paragraphs each of the movant's numbered factual assertions. The opposing party will either agree or disagree with each of the movant's stated undisputed facts. If the opposing party disagrees, he must cite to record evidence which supports his assertion that the fact is disputed. The opposing party may also file, if necessary, a Rule 12(N)(3)(b) statement of additional facts in a manner similar to the movant's Rule 12(M)(3) statement of facts.

  It's a simple rule. It doesn't ask for much from the parties. And, the language of the Local Rule 12 is neither cryptic, ambiguous, nor obscure; in fact, it is rather straight-forward. The procedures called for in Rule 12 are necessary to streamline the summary judgment process. See Waldridge v. American Hoescht Corp., 24 F.3d 918 (7th Cir. 1994). It goes without saying that adherence to the rule saves the Court a considerable amount of time. Additionally, the rule "forces" the parties to focus on the material facts and pertinent issues and thus, likely aids in their case preparation in the event a trial is necessary.

 Unfortunately, Daulo's counsel was unable to comprehend the elementary language of Rule 12. When responding to Defendant's Rule 12(M)(3) statement of material facts, he agreed or disagreed with the stated fact and then, in numerous instances, proceeded to raise additional factual assertions -- factual assertions that went well beyond the required Rule 12(N)(3)(a) "concise" response. The additional factual assertions raised by Daulo's counsel should have been listed in his Rule 12(N)(3)(b) statement of additional facts -- that's why it's called a statement of additional facts.

 Daulo's failure to comply with the rule caused the Court -- and Defendants -- to expend an exorbitant amount of time analyzing the issues. Both Defendants and Daulo were required to file additional and amended pleadings; and, more importantly, the Court was required to sort through the garbled mess. In fairness to Daulo, however, the Court will not strike his Rule 12(N)(3) response -- although it could justifiably do so *fn4" -- due to his counsel's error. Instead, the Court will determine if the additional facts listed in Daulo's Rule 12(N)(3)(a) response are supported by the evidence and go from there.

 That, takes the Court to another issue. In many of Daulo's responses, he objects to affidavit testimony submitted by Defendants on the ground that the testimony is not supported by documentary evidence. Daulo cites no authority in support of the objection. Nor is the Court aware of any such authority that requires the affiant to support testimony within his personal knowledge with documentary evidence -- keep in mind, the affidavit testimony at issue is not referring to documents, records, or papers. Indeed, the objection conflicts with FED. R. CIV. P. 56(e). Thus, the objection is invalid and the particular facts will be deemed admitted.

 One final matter needs to be addressed. In numerous instances, Daulo states a "fact," but the cited evidentiary material comes nowhere near to supporting the stated factual assertion. *fn5" ...


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