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SANTOS v. BOEING COMPANY

United States District Court, N.D. Illinois, Eastern Division


November 4, 2004.

MICHAEL SANTOS, Plaintiff,
v.
THE BOEING COMPANY, Defendant.

The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant The Boeing Company's ("Boeing") motion for reconsideration of this court's ruling on September 1, 2004, granting in part and denying in part Boeing's motion for summary judgment. This matter is also before the court on the parties' motions in limine. For the reasons stated below, we deny the motion for reconsideration. We also deny all of Boeing's motions in limine without prejudice.

BACKGROUND

  Plaintiff Michael Santos ("Santos") worked for Boeing as a Mailroom Specialist in its Chicago, Illinois office between September 17, 2001, and October 21, 2002. Steve Richards ("Richards") was the direct supervisor for Santos and one of Santos' co-workers was Bob Delelio ("Delelio"). Santos alleges that Richards and Delelio made comments regarding his racial and national origin. Santos complained about the comments to Boeing supervisors and Santos claims that Boeing retaliated against Santos by demoting him from the lead mailroom position and taking away his office. Santos also claims that Boeing ultimately terminated him because of his race and national origin.

  In addition, Santos claims that Boeing failed to protect its employees, including Santos, from the alleged fits of rage by Delelio at work. Santos claims that Delelio threw items across the mailroom, kicked furniture, and screamed and shouted at Santos and other co-workers. Santos claims that he informed Richards that he feared for his physical safety around Delelio, but Richards ignored Santos' complaints. In December of 2001, Santos complained about Delelio's alleged tantrums to Dave Komendat ("Komendat"), Boeing's Director of Security. Santos claims that Komendat assured Santos that he would investigate the matter, but that Boeing did not conduct any investigation. Around January 15, 2002, Santos once again reported Delelio's conduct after Delelio became enraged and began yelling at Santos. Santos claims that Delelio received a telephone call, apparently regarding Santos' complaint, and after Delelio hung up the telephone, he yelled at Santos and turned and allegedly grabbed for a box cutter. Santos claims that he feared that Delelio would use the knife to harm him and ran out of the mailroom. Santos' second amended complaint contains a hostile work environment claim alleging violations of 42 U.S.C. § 2000e et seq. ("Title VII") (Count I), a race discrimination claim alleging violations of 42 U.S.C. § 1981 ("Section 1981") (Count II), Title VII retaliation claims (Counts III, IX, and X), Section 1981 retaliation claims (Counts IV and V), a Fair Labor Standards Act ("FLSA") claim, 29 U.S.C. § 201 et seq. (Count VI), a negligent retention claim (Count VII), and a Title VII race and national origin claim (Count VIII). On May 10, 2004, we granted Boeing's motion to dismiss the negligent retention claim (Count VII). Boeing filed a motion for summary judgment and on September 1, 2004, we granted Boeing's motion for summary judgment on the discrimination claims, denied Boeing's motion for summary judgment on the retaliation claims, the hostile work environment claim, and the FLSA claim. We also denied Boeing's motion for partial summary judgment on damages. Boeing has now filed a motion for reconsideration in regards to the September 1 rulings. The parties have also filed motions in limine.

  LEGAL STANDARD

  A motion for reconsideration may be brought "to correct manifest errors of law or fact or to present newly discovered evidence." Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1269-70 (7th Cir. 1996). Such motions cannot be used as a "vehicle to produce new evidence that could have been" produced earlier or as a vehicle to "rehash?" the same arguments presented to the court on a prior occasion. Id.

  DISCUSSION

  I. Prior Improper Filing by Boeing

  The instant motions filed by Boeing are improper for a variety of reasons, but this is not the first time that Boeing has filed documents that are wholly deficient. On November 1, 2004, we denied Boeing's motion to amend its answer to include a new affirmative defense because Boeing did not state in its motion what affirmative defense it was seeking to introduce. Also, the motion contained so many typographical errors and apparent omitted language as to render the motion incoherent and we were not able to properly rule on the motion.

  II. Motion for Reconsideration

  The instant motion for reconsideration is so completely without merit that it borders on being a frivolous filing. Boeing's erroneous arguments are due to a focus on phrases taken out of context from our prior ruling, a lack of understanding of the pertinent case law, and an insufficient review of our prior order. Regardless of whether the deficiencies in Boeing's motion for reconsideration are the result of gamesmanship or a lack of diligence on Boeing's part, this court has needlessly expended time untangling Boeing's arguments. In addition, in its motion for reconsideration Boeing disregards procedural rules and attempts to proceed in an informal and disorganized manner that will not be condoned by this court.

  A. Improper Reliance on Rule 59(e)

  Boeing's entire motion for reconsideration is improperly premised on Federal Rule of Civil Procedure 59(e). Rule 59(e) only applies when a party seeks the reconsideration of a ruling that was accompanied with a final judgment. See Fed.R. Civ. P. 59(e) (explaining that the section addresses a "motion to alter or amend a judgment"); Crestview Village Apartments v. U.S. Dept. of Hous. and Urban Develop., 383 F.3d 552, 558 (7th Cir. 2004) (explaining that "[a]fter final judgment has been entered, a plaintiff may amend with leave of the court following a motion to set aside the judgment under Rule 59(e) or Rule 60(b)."); U.S. v. Olsen, 2001 WL 817854, at *2 (N.D. Ill. 2001) (explaining that the defendant was "correct that neither Rule 59(e) nor Rule 60(b) appl[ied] . . . because the ruling did not dispose of the entire case and the court did not enter a final judgment."). No final judgment has been entered against Boeing thus far in the instant action and thus Boeing's reference to Rule 59(e) is improper. The proper legal standard for a motion for reconsideration at the instant juncture is stated above.

  B. Retaliation Claim

  Boeing complains in its reply that Santos improperly argued in his answer "that his retaliation claim should remain an issue for trial." (Reply 1). Boeing attempts to inform this court that the retaliation claim is no longer at issue because "this Court found that Plaintiff's termination was based on a legitimate, non-discriminatory reason and that Plaintiff failed to show that the reasons given were a pretext." (Reply 1). This statement is absolutely false and in fact this court explicitly found the opposite to be true in its prior ruling in regards to the retaliation claim. Interestingly Boeing failed to provide any citation to our prior ruling to support its contention that the retaliation claim is no longer alive in this action. In our prior ruling we specifically held that "unlike the Title VII discrimination claim, Santos has pointed to sufficient evidence for a reasonable trier of fact to find that the given reasons for employment actions taken by Boeing were a pretext for retaliation." (9/1/04 Ruling 11). We also stated very clearly: "We find that there are legitimately disputed facts regarding the retaliation claim and deny Boeing's motion for summary judgment on the retaliation claim." (9/1/04 Ruling 12). A simple reading of our prior ruling would have informed Boeing of its erroneous position.

  Boeing also argues that this court improperly considered statements made by Gale Andrews ("Andrews") and Millie Weaver ("Weaver") because they were not decision-makers at Boeing. (Recon. 1-2). Boeing complains that in regards to the retaliation claim, this court cited Cerutti v. BASF Corp., 349 F.3d 1055, 1066 (7th Cir. 2003), for the premise that "a plaintiff cannot proceed under the direct method based on comments made long before the alleged adverse employment action or on comments `made by individuals who had no involvement or influence over the decision making process that led to' the plaintiff's termination." (Recon. 1-2). However, a review of our prior ruling shows that Boeing is referring to sentences by the court out of context.

  First of all the section of our prior ruling that Boeing is referring to and has cited is the section devoted to the Title VII discrimination claim rather than the retaliation claim. Secondly, as we indicated in our prior ruling, in order to defeat a motion for summary judgment on a Title VII claim a plaintiff can proceed under the direct or indirect method of proof. Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir. 2003). In our prior ruling, in the section devoted to the retaliation claim, we found that Santos was able to establish a prima facie case under the indirect method of proof rather than the direct method of proof. (9/1/04 Ruling 11). We addressed for instance in that section of our ruling whether or not Santos was performing his job satisfactorily, which is part of a prima facie case under the indirect method of proof and we discussed the pretext issue. Id. Thus, Boeing's reference to Cerutti v. BASF Corp. is entirely misplaced as it refers specifically to the direct method of proof. 349 F.3d at 1066(following the above quote with the statement that the "comments cannot be used by the plaintiffs to support claims of race or national origin discrimination under the direct method."). Also, regardless, there was sufficient evidence to make a reasonable inference that Andrews' and Weaver's statements were indicative of Boeing's motivations when making the pertinent decisions at issue. Boeing also argues that this court should have considered the temporal gap between alleged misconduct and Santos' termination and that Santos has not met his burden of showing a "causal connection." (Recon. 2). However, Boeing again fails to recognize that we found that Santos was able to proceed under the indirect method of proof rather than the direct method of proof. No showing of a causal connection is required for the analysis under the indirect method of proof. Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). At one time in the Seventh Circuit there was such a causal connection prong for the indirect method of proof for a retaliation claim, but those cases are no longer good law. See Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 643 (7th Cir. 2002) (explaining that the causal link is no longer required under the indirect method). Boeing also cites Oest v. Illinois Dept. of Corrections, 240 F.3d 605 (7th Cir. 2001) and E.E.O.C. v. Yellow Freight System, Inc., 253 F.3d 943 (7th Cir. 2001) in its arguments pertaining to the retaliation claim. (Recon. 2). However, both of the cases were decided prior to Stone which changed the indirect method of proof for retaliation claims. Also, Boeing merely cites the cases generally without providing any page numbers with the citations and thus the court is left to scour the cases to determine whether or not a portion of the case might support Boeing's position. However, the court will not do Boeing's work for it. C. Hostile Work Environment Claim

  Boeing argues that there is not sufficient evidence to support the hostile work environment claim. Boeing first argues that this court erred in denying summary judgment on the hostile work environment claim because this court "found that Plaintiff had not established direct evidence of discrimination." (Recon. 2). Boeing cites page six of our prior ruling to support its position. Again Boeing would do well to read our prior ruling carefully and review the pertinent case law before jumping the gun and filing a motion for reconsideration. On page six of our prior opinion, as is clearly indicated by our headings, and by our discussion in the text, we were addressing the direct method of proof for the Title VII discrimination claim. We specifically began addressing the hostile work environment claim on page thirteen of the memorandum opinion. In addition, as the case law makes clear, the analysis for a hostile work environment claim is separate from a discrimination claim which utilizes the McDonnell Douglas burden shifting approach. See Hilt-Dyson, 282 F.3d at 462-63, 465(explaining the different analysis for a hostile work environment claim and a retaliation claim). We also note that Boeing, in complaining that Santos did not establish "direct evidence" of retaliation, is not being consistent with the law because even under the direct evidence method circumstantial evidence may also be considered. Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).

  Boeing next cites a case involving a hostile work environment claim and Boeing devotes a portion of its motion for reconsideration to explaining why the instant case is similar to the case cited by Boeing and explaining why we should follow that case cited by Boeing and reconsider our prior ruling. As indicated above, motions for reconsideration are reserved for pointing out manifest errors of law. Caisse Nationale de Credit Agricole, 90 F.3d at 1270. However, the case that Boeing places so much reliance on in its motion for reconsideration is not even controlling precedent. The case is an Eight Circuit case that consists of nothing more than persuasive authority and, even according to Boeing, the case merely has similar facts. This is yet another example of Boeing's failure to comprehend the purpose of a motion for reconsideration and the pertinent case law. Also, if Boeing thought that the Eight Circuit case was of such value it could and should have presented it along with its motion for summary judgment.

  Next Boeing complains that Delelio's conduct did not contribute to the hostile work environment. Boeing's arguments concerning the hostile work environment claim are based on Boeing's contention that the only alleged misconduct by Delelio was limited to "three comments with regard to Plaintiff's national origin." (Recon. 3). Boeing is mistaken. Boeing is not entitled to summary judgment simply because it puts on blinders and refuses to acknowledge the existence of the opposing side's allegations of misconduct that create legitimately disputed issues. Even if Boeing were to ignore the allegations presented by Santos in his briefs, Boeing should have been clear on the allegations of misconduct if Boeing had read our prior ruling which thoroughly discussed the allegations made by Santos. As we indicated in our prior ruling, Santos contends, among other things, that "Delelio threw items across the mailroom, kicked furniture, and screamed and shouted at Santos and other co-workers." (9/1/04 Ruling 2). Santos claims that he informed Richards and Dave Komendat about the tantrums, but that nothing was done to stop them. Id. Santos also alleges that in January of 2002, Santos "again reported Delelio's conduct after Delelio became enraged and began yelling at Santos" and that "after Delelio hung up the telephone, he yelled at Santos and turned and allegedly grabbed for a box cutter" at which time Santos ran out of the mailroom in fear for his safety. Id. Boeing acknowledged itself in its statement of material facts, that the allegations against Delelio consisted of more than three comments. See e.g. (SF 104-106). Santos also made his allegations clear in briefs such as his statement of additional facts. For example Santos contended that "Delelio often erupted in violent fits of rage in which he would scream, throw [sic] and make threats." (SAF 27). Thus, Boeing's arguments that rely on three isolated comments by Delelio are not consistent with the record in this case.

  It was Boeing's burden as the movant to address the pertinent case law and to show that summary judgment was warranted on the hostile work environment claim. Boeing, again failing to understand the law in this area, failed to even address whether or not the Delelio conduct should be considered as a contributing factor to the hostile work environment. Boeing also now argues that since this court dismissed the negligent retention claim that this issue was resolved. However, the negligent retention claim involved separate case law and the issues and findings regarding a negligent retention claim and those associated with a hostile work environment claim are not synonymous. Boeing failed to comprehend what was required of it under the law to show that summary judgment was warranted and a motion for reconsideration is not the proper vehicle for Boeing to correct its mistakes.

  D. After-Acquired Evidence Doctrine

  Boeing also inserts a section at the end of its motion for reconsideration in which it asks for "clarification from the court with regard to its ruling on the after-acquired evidence doctrine." (Recon. 5). First of all, the proper procedural manner to present such an argument would be to file a motion for clarification rather than to append the argument to the end of a motion for reconsideration. However, in the interest of expediting these proceedings we shall address the arguments on the issue presented by Boeing.

  In its motion for summary judgment, Boeing argued that the amount of damages should be limited by the after-acquired evidence doctrine. In our prior ruling we denied the partial motion for summary judgment on damages because the after-acquired evidence doctrine is an affirmative defense and Boeing failed to plead the defense in its answer to the second amended complaint. See Jones v. Board of Trustees of Community College Dist. No. 508, 75 F.Supp.2d 885, 887 (N.D. Ill. 1999) (finding that the doctrine is an affirmative defense and that defendant "waived the after-acquired evidence defense by not raising it in the pleadings."). Boeing attempted to amend its answer to Santos' second amended complaint, to include the affirmative defense, but only after discovery was completed and Boeing's summary judgment motion was briefed by Santos. We stated in our prior ruling that it would be unfair to allow Boeing to present the defense at the dispositive motion stage of the proceedings, thereby denying Santos the opportunity to conduct discovery relating to the defense. (9/1/04 Ruling 17). Boeing has filed a proposed amendment to its answer to the amended complaint and an amended answer to the amended complaint, but there is no pending motion for leave to file an amended answer.

  Boeing now asks whether or not it can proceed at trial with this defense despite our prior ruling. Boeing first contends that "discovery has been conducted by Plaintiff on this issue." (Recon. 5). However, a closer examination of the facts shows that Boeing has again made an erroneous statement. Boeing further acknowledges that the only discovery that is possibly related to the issue is one interrogatory posed by Santos that Boeing contends shows that Santos "clearly anticipated and acknowledged the defense." (Recon. 5). Santos vehemently denies that it has been given the opportunity to conduct discovery on the issue and requests that if this court were to allow Boeing to proceed with the defense that discovery be re-opened. (Ans. 9). Boeing also argues that any issue of discovery "can be fully remedied before trial." (Recon. 6). However, conducting further discovery at this late stage of the proceedings is not acceptable to the court and would not be fair to Santos. We have a duty to see that these proceedings proceed in an efficient and orderly manner and we must ensure that all of our cases proceed to a resolution despite the tactics of delay and obstruction presented by the parties. We will not take two steps backward and reopen discovery, which incidently may uncover more information that may lead to additional requests for discovery, simply to allow Boeing to repair its prior mistakes. Boeing itself has proceeded thus far in a disorganized manner and, as is illustrated by its recent attempt to present a new affirmative defense, Boeing is proceeding in a piecemeal fashion that has caused delay and confusion. Boeing was given clear deadlines for discovery and Boeing neglected to raise the defense in its answer and Boeing has not provided sufficient justification to reopen discovery at this late stage of the proceedings.

  Also, we need not even entertain Boeing's motion for clarification regarding the presentation of the after-acquired evidence defense at trial because Boeing has no pending motion for leave to amend its answer to the complaint, which is a necessary step to avoid waiver. Boeing has again failed to follow the proper procedures for civil practice in federal court. We stated in our motion for summary judgment that Boeing would not be allowed to amend its answer to the complaint because of its untimely nature. See Larkin v. Galloway, 266 F.3d 718, 722 (7th Cir. 2001) (stating that the district court could deny a motion to amend the answer because of "undue delay and bad faith"). We find that there is also evidence in this action of undue delay and bad faith by Boeing in this action. Two examples of such improper conduct are the fact that Boeing has bombarded the court and Santos with frivolous arguments and motions and Boeing's most recent attempt to introduce another new affirmative defense, and thus thrust new issues into the action on the eve of trial. Santos would also be prejudiced if we were to allow the introduction of the defense at this juncture.

  III. Motions In Limine

  The parties have each filed their motions in limine. Boeing's motions in limine are wholly deficient for a variety of reasons. First of all, Boeing asserts in its in limine brief that it has one "motion in limine." In actuality, Boeing refers in its in limine brief to twenty-two different motions in limine. Boeing argues that it has only one motion in limine because Boeing has combined all twenty-two motions in limine into one eight-page long run-on sentence. We do not condone such a haphazard and informal approach in regards to motions in limine. Santos, for example, properly broke down each of its motions in limine and provided separate memorandums to explain the legal bases for his positions. Boeing's in limine requests consist of short portions of sentences laid out in the most conclusory fashion. Boeing fails to provide any detailed elaboration for any of its positions and for some of its requests, it fails to provide any explanation at all for its position. For example, in paragraph 13 of Boeing's "motion in limine" Boeing asks the court to bar "[a]ny reference to assertions made by Plaintiff in his letter to Kathleen Leaver of the Equal Employment Opportunity Commission of [sic] March 6/7, 2003, unless used for impeachment purposes." (D. Mot. In Lim. Par. 12). Boeing does not provide any further statement in regards to the request and fails to provide any reason for its contention that references to the letter should be barred. In regards to some other in limine requests Boeing provides only a limited statement of explanation for its position, leaving the court to speculate as to the basis for its in limine request. Boeing must do more than spray the court and opposing party with one line arguments and hope that one will succeed. The court will not do Boeing's work for it.

  Therefore, we deny all of Boeing's motions in limine without prejudice. We shall give Boeing until November 10, 2004, to remedy its improper filings. The answers to the motions will be due on November 17, 2004. Since, Boeing has abused the filing rules in its first attempt to file its motions in limine, if Boeing decides to file a motion in limine it must file a separate brief for each motion. Boeing must also provide a detailed legal basis for its position in regards to each motion in limine. Boeing is warned that any future motions in limine containing vague or unclear requests will be denied summarily. IV. Future Improper Conduct By Boeing

  Boeing has caused this court to needlessly expend time and resources in regards to three different motions filed by Boeing. Santos has thus, also been forced to expend such resources. This court expended time and resources to write fourteen pages of text in order to untangle Boeing's many arguments in its motion for reconsideration despite the fact that none of them had a shred of merit. Whether the deficient filings by Boeing were due to a lack of diligence or whether they were due to gamesmanship and a strategy to overwhelm the opposing side with frivolous filings, we will not condone further improprieties. We shall address after the conclusion of the trial whether or not Boeing will be sanctioned for its conduct thus far. In addition, if there are any such further improprieties on Boeing's part, we will call in all counsel and the principals for both sides in this action and make clear that we will not allow this action to proceed in such a manner.

  CONCLUSION

  Based on the foregoing analysis, we deny Boeing's motion for reconsideration and we deny Boeing's motions in limine without prejudice. Boeing is given until November 10, 2004, to file new motions in limine and the answers will be due by November 17, 2004. Also, due to the delays caused by Boeing's improper filings, we find it prudent to strike the pre-trial conference set for November 4, 2004, and reschedule it for November 22, 2004, at 10:30 a.m.

20041104

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