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WANG v. ABUSAAD

United States District Court, N.D. Illinois


February 26, 2004.

Wang
v.
Abusaad

The opinion of the court was delivered by: JAMES ZAGEL, District Judge

MOTION

Defendant now moves to bar any testimony, evidence, argument or exhibits concerning alleged misconduct by Taher Abusaad toward Sharon Block and Kadija Malick. Plaintiff has alleged that Abusaad made inappropriate comments about Ms. Block's bust during working. Unlike the Plaintiff, Ms. Block did not allege any physical contact and did not directly report this incident to her supervisors. Because of these differences, I find that the probative value of Ms. Block's testimony is substantially outweighed by the prejudice it would cause to the Defendant.

Moreover, I consider the difficulties created by the fact that Ms. Block is the niece of Plaintiff's trial cousel. Ms. Block's relation to Plaintiff's cousel is a reasonable subject for cross-examination but it is likely to be substantially outweighed by prejudice. To avoid Rule 403 problems for both sides, 1 find this evidence is not to be admitted.

  Plaintiff has also alleged that Abusaad inappropriately touched Ms. Malick and made inappropriate comments to Ms. Malick while driving her home after work. Ms. Malick reported this incident to her supervisors. This instance is very similar to the allegations made by Plaintiff and is admissible to show Defendant had prior notice of Abusaad's conduct.

  Defendant's Motion in Limine 1 is GRANTED as to Sharon Block and is DENIED as to Kadija Malick.

  Defendant argues that it is entitled to summary judgment on Count 11 of Plaintiff's complaint. Plaintiff has alleged a claim of sexual harassment. Under Title VII, an employer is strictly liable for the sexual harassment of an employee by a supervisor. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In cases involving no tangible employment action, an employer can escape liability if (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and (2) the plaintiff failed to take advantage of any preventive or corrective opportunities provided. Id. at 765. Given the facts of this case, I believe a reasonable jury could find for the Plaintiff on this count. Therefore, summary judgment is inappropriate.

  Defendant also argues that it is entitled to summary judgment on the issue of punitive damages. Punitive damages are appropriate if the defendant engaged in conscious wrongdoing, acted with malice, or acted with reckless indifference in violation of the law. Zelinski v. Columbia 300 Inc., 2003 WL 21544983 (7th Cir., July 10, 2003). Even when the evidence is viewed in the light most favorable to the Plaintiff, this burden cannot be met. Defendant had in place an anti-discrimination policy, which included procedures and mechanisms designed to investigate and act on complaints of sexual harassment. In fact, when Plaintiff complained of Abusaad's allegedly inappropriate actions and comments, Defendant conducted a prompt investigation and ultimately fired Abusaad. Therefore, I find summary judgment on punitive damages is appropriate.

  Defendant's Motion for Summary Judgment is GRANTED as to punitive damages, and is otherwise DENIED.

20040226

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