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Gonzalez v. Brandenburg Industrial Service Co.

September 29, 2006

STEVE GONZALEZ, PLAINTIFF,
v.
BRANDENBURG INDUSTRIAL SERVICE CO., DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Steve Gonzalez was employed by Defendant Brandenburg Industrial Service Company (hereinafter, "Brandenburg") as an operating engineer. From the fall of 2003 until the spring of 2004, on a number of occasions outlined below, Brandenburg Superintendent Ronnie Freeman ordered Gonzalez to perform manual labor while using coarse language allegedly laced with references to Gonzalez's Mexican national origin. Plaintiff sued Brandenburg for creating a hostile work environment and discriminating against him on the basis of his national origin in the terms and conditions of his employment in violation of Title VII and 42 U.S.C. § 1981. Defendant now moves for summary judgment on all claims.

For the reasons set out below, Defendant's motion is denied.

STATEMENT OF FACTS*fn1

Plaintiff, a U.S. citizen, was born in Mexico. (Def.'s 56.1(a) ¶ 2.) In 1982, Plaintiff took a position as a laborer with Brandenburg, a demolition business whose laborers use blowtorches, shovels, jackhammers, wrecking bars, and brooms to tear down and carry away debris from buildings, roads, and other construction projects. (Id. ¶¶ 1,3; Gonzalez Dep. at 16-17.) Plaintiff remained with Brandenburg as a laborer for twelve years, at which time he relocated to Alabama to take a job as a foreman. (Def.'s 56.1(a) ¶¶ 8-10.) Plaintiff recalled that during this first period of employment at Brandenburg, while laborers occasionally operated some of the machinery, such as the bobcats, Plaintiff never saw an operating engineer perform manual labor. (Gonzalez Dep. at 20-21.)

Upon Plaintiff's return to Illinois in 1998, U.S. Dismantlement employed Plaintiff as an operating engineer and Plaintiff joined the International Union of Operating Engineers, Local 150. (Id. at 26-27.) In October of 2000, the union sent Plaintiff back to Brandenburg, where Jack Jasinowski hired him as an operating engineer. (Def.'s 56.1(a) ¶¶ 11-12.) Brandenburg's workforce is overwhelmingly Hispanic, and Superintendent Freeman estimated that 99 percent of the employees he supervised there are Mexican or Mexican-American. (Id. ¶ 32; Plaintiff's Response ¶ 32; Freeman Dep. at 29.) Although the record lacks specific dates for many events, Plaintiff alleges that Freeman began harassing and discriminating against him within days of his return. (Gonzalez Dep. at 190.) As the superintendent, Freeman answered only to Brandenburg Project Manager Dennis McGarel and was usually the senior-most manager on any Brandenburg work site. (Pltf.'s 56.1(b)(3)(B) ¶¶ 17-21.) Plaintiff testified that he worked with Freeman 90 percent of the time, (Gonzalez Dep. at 209), while Freeman himself could recall only four or five occasions. (Freeman Dep. at 28.) As set forth below, Plaintiff elaborated on nine interactions in his deposition.

Asbestos Removal Projects

In the fall of 2003, Plaintiff had been working for Brandenburg at a job on Wacker Drive. (Gonzalez Dep. at 32.) Although there was equipment at the work site, Plaintiff was not assigned to run that machinery. (Def.'s 56.1(a) ¶ 63.) Instead, a supervisor named Louie directed Plaintiff to perform manual removal of asbestos. (Gonzalez Dep. at 32.)*fn2 To Plaintiff's dismay, while he performed what he considered to be laborer's work, some of the laborers themselves were operating the machines. (Id.) Plaintiff acknowledges that Louie said nothing offensive to him and that the laborers performing what Plaintiff considered to be operator's work were themselves Mexican or Mexican-American.*fn3 (Def.'s 56.1(a) ¶ 65.) Plaintiff called Kevin Burke, Local 150's business agent, to complain about the way Brandenburg assigned work at the Wacker Drive site. (Gonzalez Dep. at 27-29.) According to Plaintiff, Burke promised to send another business agent to the work site, but no one came. (Id. at 31.)

Plaintiff asserts that Brandenburg (Plaintiff does not identify the particular supervisor) then sent him offsite for two weeks to perform additional asbestos removal at an unidentified building. (Def.'s 56.1(a) ¶ 66.) When Plaintiff first arrived at this new work site, Plaintiff recalled that Freeman told Tony Scott, one of the Brandenburg foremen, "[P]ut this fucking Mexican in the basement and take the asbestos out." (Gonzalez Dep. at 51.) Plaintiff testified that in his twenty-two years in construction he had never heard a foreman or superintendent swear at an employee he or she was supervising. (Id. at 57-58.) Plaintiff further stated that Freeman never used this abusive language with any other employees, regardless of their national origin. (Def.'s 56.1(a) ¶¶ 34-35.) Yet, according to Plaintiff, on almost every shift in which Freeman and Plaintiff worked together, Freeman used similar abusive language in reference to Plaintiff's national origin:

When I come back to Brandenburg since I been operator, he was talking to me like that all the time. Fucking jagoff. Fucking Mexican. Motherfucker. Put this motherfucker to work over there. . . . Put this Mexican over here. Every fucking day I hear this, the fucking word from him. (Def.'s 56.1(a) ¶ 31; Gonzalez Dep. at 58-59.)

Although Plaintiff was assigned to perform manual labor at this worksite, he observed two bobcats*fn4 and inferred from this that there was machine operation work to be done. (Gonzalez Dep. at 54.) When Plaintiff complained about his assignment to another foreman on the site, Willie Gonzalez, Gonzalez told Plaintiff that if he did not remove the floor tiles as instructed, Freeman would fire him. (Id. at 46-48.) Plaintiff did not in fact remove the tiles, however. (Id. at 50.) Instead, he proceeded to put plastic over windows (presumably, to prevent them from being damaged while other laborers removed the floor tiles and pulled out the asbestos). (Id.) With respect to the two machines Plaintiff observed, Wele Hernandez, a Mexican or Mexican-American operating engineer, operated one of the bobcats for the duration of the job, (Def.'s 56.1(a) ¶ 68), and Plaintiff could not recall the name or national origin of the man who operated the other one. At some point during this two-week job, Plaintiff himself operated the second bobcat for two days. (Gonzalez Dep. at 38-40.)

Although Brandenburg supervisors assigned Plaintiff manual tasks rather than asking him to operate the machinery on site, Plaintiff received an operator's wage for work at both sites. (Id. at 36, 50.)

Whiting, Indiana Project

Plaintiff's next Brandenburg assignment was to a work site in Whiting, Indiana, where Tony Evans was the foreman. (Def.'s 56.1(a) ¶ 69; Gonzalez Dep. at 64.) Plaintiff believed that he was being sent to operate a piece of machinery, but when he arrived, Plaintiff heard Freeman tell Evans, "Put this fucking Mexican on the torch upstairs." (Gonzalez Dep. at 64.)

Plaintiff observed that while Freeman assigned him to manual labor, two operators and two laborers were operating the machines at the work site. (Id. at 66.) At least one of these operators, Jaime Sapian, was Mexican or Mexican-American. (Def.'s 56.1(a) ¶ 71.) Plaintiff refused to perform the task assigned to him, and Evans assigned Plaintiff to one of the machines after Freeman left the work site. (Gonzalez Dep. at 67, 76.)

O'Hare Project

From Whiting, Plaintiff rotated through several Brandenburg jobs. (Gonzalez Dep. at 77.) One work site was O'Hare Airport. (Def.'s 56.1(a) ¶ 72.) The foreman on that job, Tony Carbajol, was Mexican or Mexican-American. (Gonzalez Dep. at 82.) Plaintiff, along with three persons of Mexican descent--Wbaldo Juares, Juan Avila, and Wele Hernandez--ran the combination backhoes and bobcats on the site. (Id. at 78-81.) When Freeman walked by the machines, he told Plaintiff, "[H]ey, get your fucking ass off the machine and pick some concrete or something." (Id. at 81.) While Juares, Avila, and Hernandez remained on their machines, Plaintiff joined the mostly Mexican and Mexican-American laborers in shoveling and picking the concrete manually. (Def.'s 56.1(a) ¶ 74.) Plaintiff received operator's wages for both the time he spent operating the machines and the time he spent performing manual labor. (Gonzalez Dep. at 78.)

Ford Plant Project

On another occasion, Plaintiff was working on a job at a Ford Plant. (Gonzalez Dep. at 144.) While other workers were using a blowtorch, Plaintiff held a water hose at the ready in the event of a fire. (Id. at 145.) Freeman spotted Plaintiff, and according to Plaintiff, told him that nothing would catch fire and directed him to "[g]et on the fucking torch, motherfucker." (Id.) Plaintiff asked the foreman to call Brandenburg's Project Manager Dennis McGarel. (Id.) Plaintiff claims that he told McGarel that Freeman had used coarse language with him and that, although he did not mind the work, he did not like the way Freeman spoke to him. (Id.) According to Plaintiff, McGarel told Plaintiff that he would see if there was something he could do about Freeman. (Id.) McGarel denies that this conversation ever took place. (McGarel Decl. ¶ 9.)

Soldier Field Project

On yet another unspecified date, Plaintiff was assigned to work on a project at Soldier Field. (Gonzalez Dep. at 151.) The project required an operating engineer to use a backhoe to break a section of concrete, wait for the laborers to clean up by hand, and then break another section of concrete. (Id.) Plaintiff operated the backhoe, but after he had finished breaking a section of concrete, he would get off the machine and help the laborers sweep. (Def.'s 56.1(a) ¶ 62.) The foreman, Jesse Avila, asked Plaintiff why he kept getting off his machine. (Gonzalez Dep. at 153.) According to Plaintiff, Avila pointed out that the white operating engineer Plaintiff had replaced simply sat on his machine while the laborers cleaned, and Freeman had not said anything to the white operating engineer. (Id.) Plaintiff took Avila's advice, but when Freeman arrived at the work site, Freeman shouted, "Get off the fucking machine and go to fucking work." (Id. at 154.) According to Plaintiff, Freeman told Avila to "put the fucking Mexican to work." (Id.) Following this confrontation, Plaintiff resumed working with the laborers when he was not operating the backhoe, although he received operator's wages for the entire project. (Id. at 154-55.) 3M and ISG Projects

Plaintiff described two additional incidents in which he was replaced on a machine by a white operating engineer. On a date Plaintiff only identifies as two to three months before April 20, 2004, Plaintiff was operating the front-end loader at the 3M work site. (Gonzalez Dep. at 225.) According to Plaintiff, Freeman took him off the machine and sent him to work with the laborers so that a white operating engineer who had just arrived on the site could use this machine. (Id. at 228.) Plaintiff refused to work with the laborers and was assigned a bobcat the next day. (Def.'s 56.1(a) ¶ 60.)

On another occasion at the ISG work site, Plaintiff recalls that the outside temperature was 40 degrees below freezing. (Gonzalez Dep. at 226.) Plaintiff was operating a machine with heat for two or three weeks, but when a white operating engineer arrived at the work site, the white operator was given Plaintiff's heated machine and Plaintiff was reassigned to an unheated bobcat. (Id. at 226.)

I-294 Project

Around April 17, 2004, Plaintiff was working in Alsip, Illinois on a Brandenburg work site along I-294. (Def.'s 56.1(a) ¶ 76.) Plaintiff's foremen were both Mexican or Mexican-American: Tony Carbajol and Jesse Avila. (Gonzalez Dep. at 94.) Plaintiff was running the bobcat while another Mexican or Mexican-American operator, Wbaldo Juares, and African American Rodney Brown operated a larger piece of machinery called the 980. (Def.'s 56.1(a) ¶ 77; Gonzalez Dep. at 94-95.) According to Plaintiff, a Mexican or Mexican-American laborer operated another piece of equipment. (Gonzalez Dep. at 225.) Plaintiff's 12-hour shift began at 7 A.M. (Id. at 96.) Freeman had been at the work site all morning without incident, but at 11 A.M., according to Plaintiff, Freeman confronted Plaintiff and said, "Hey, you motherfucking Mexican. Get your ass off the machine and go on the shovel." (Id. at 97.) Freeman, again according to Plaintiff, told Foreman Carbajol, "Put this fucking Mexican to work over there." (Id.) Plaintiff recalls that Carbajol told Freeman that Plaintiff was working just like everyone else. (Id.)

Andy Youpel, a safety representative from Brandenburg, was also on site, and Plaintiff told him, "Ronnie got a problem with me, and I don't know what the problem is and I need to fix it because he got me tired already. He be talking to me an asshole, a jagoff, motherfucker every days and I'm tired for that already." (Def.'s 56.1(a) ¶¶ 47-48.) Plaintiff told Youpel that the way Freeman spoke to him "bothered" him a lot, and Youpel promised to talk to Freeman. (Gonzalez Dep. at 98-99.) Freeman left the site. (Id. at 99.) Plaintiff does not know whether Youpel ever spoke to Freeman, but when Freeman returned later that day, Freeman instructed Plaintiff to turn off his machine and, according to Plaintiff, said, "[H]ey, you motherfucker. We was supposed to work Sunday too. If you want to work tomorrow, I'm going to put you on the fucking shovel all fucking day." (Id.) Plaintiff refused to shovel and instead told Foreman Carbajol that he was going home early. (Id. at 102.)

On the way home, Plaintiff stopped at the Alsip Police Department to complain about Freeman's treatment of him. (Id.) The Alsip Police instructed Plaintiff that they could not help him with an employment dispute. (Id.) On April 19, 2004, Plaintiff sought help at City Hall (presumably of Alsip) and filed a complaint with his union. (Id. at 105.) Plaintiff and Freeman worked two or three more shifts together, but after about April 21, 2004, Plaintiff testified that he ...


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