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Dorado v. Dial Corp.

April 5, 2007

JUAN DORADO, PLAINTIFF,
v.
THE DIAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the court on Defendant The Dial Corporation ("Dial")'s motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, Dial's motion is granted.

BACKGROUND

Local Rule 56.1 requires a party opposing a motion for summary judgment to submit a response to each numbered paragraph of the moving party's statement of material facts, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon. In this case, Plaintiff Juan Dorado ("Dorado") has not responded to Dial's statement of material facts in conformance with the local rule. Dorado has denied groups of paragraphs "in part" without specifying which facts he intends to admit or deny. Further, Dorado does not support the majority of his denials with evidence from the record but instead with unsubstantiated and conclusory argument. In assembling the factual recitation that follows, we have disregarded any alleged facts or purported denials that are unsupported by the record. See Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).

Dial owns and operates a soap manufacturing facility, commonly referred to as the "Aurora plant," in Montgomery, Illinois. Plaintiff Juan Dorado ("Dorado") was born in Mexico on July 11, 1947, and currently resides in Aurora, Illinois. Dorado worked for Dial from July 16, 1984, until August 12, 2002. Throughout his employment, Dorado was a member of the Aurora plant's union and served as a union steward from 1988 until 1998.

Dial maintains a "No Harassment Policy" that prohibits "slurs, jokes, and other uninvited verbal, graphic or physical conduct by one individual towards another." The No Harassment Policy also provides that complaints will be investigated discreetly and that violations of the policy may result in disciplinary action, up to and including termination. Dorado was aware of Dial's anti-harassment policy and understood that violations of Dial's anti-harassment policy could result in termination. Dial also maintains plant rules (the "Plant Rules") that Dial managers could refer to as a guide for determining discipline. The Plant Rules define "Major Infractions" as "morally or socially unacceptable behavior," including harassment of other employees, and provide that violations of "Major Infractions" "will subject employees to disciplinary action up to and including permanent separation" from Dial. Dorado was familiar with the Plant Rules and, while serving as a union steward, advised employees on how the rules worked.

On November 27, 2001, Dial suspended Dorado indefinitely because he violated Dial's expense reimbursement policy and falsified company records. The union filed a grievance challenging Dorado's suspension. Following grievance meetings with the union, Dial agreed to return Dorado to work on January 3, 2002, pursuant to a final warning status ("Last Chance Agreement"). Dorado understood the terms of his Last Chance Agreement, which included a provision that "any violation of Plant Rules in the "Major" or "Serious Infractions" area in the next 12 months may result in "immediate termination of [Dorado's] employment."

On July 31, 2002, Sharron Wilson, then a union grievance committee member, approached Dial's then Employee Relations Manager, Jeanne Keach, and informed her that a fellow employee had confided in her that she was being sexually harassed by Dorado. Keach investigated these complaints, and learned of an additional woman's complaints concerning Dorado's allegedly harassing conduct.

On August 12, 2002, Keach met with Dorado and a union steward to discuss the allegations against him, which included complaints concerning his kissing women's hands, touching a female employee in her hip area, and making inappropriate comments to female employees. Dorado denied the allegations, and Keach informed him that Dial was suspending his employment pending the completion of her investigation. Based on the results of her investigation, Keach found that the allegations against Dorado were credible and that his conduct violated his Last Chance Agreement. She recommended that Dial terminate his employment, a recommendation that was approved by the manager of human resources and the Aurora plant manager. In reaching its decision to terminate Dorado's employment, Keach was also aware that discovery in a pending pattern and practice sexual harassment case against Dial revealed a number of allegations regarding Dorado that, if true, constituted additional violations of Dial's No Harassment Policy. On August 14, 2002, Dial advised him that it was terminating his employment because of his inappropriate behavior in the workplace and because, by engaging in such behavior, he had violated his Last Chance Agreement.

On June 30, 2005, the Equal Employment Opportunity Commission issued Dorado a Notice of Right to Sue. On September 29, 2005, he filed suit against Dial, claiming that he was discriminated against because of his age, race, and national origin, and that the termination of his employment violated the Age Discrimination Employment Act, 42 U.S.C. § 1981, and Title VII. Dorado contends that he was treated more severely than other younger, white employees who were also accused of sexual harassment. Further, Dorado maintains that Dial wrongly accused him of harassment.

Dial now moves for summary judgment in its favor on the entirety of the complaint. In addition, Dial seeks an award of attorneys' fees and costs pursuant to section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), and 28 U.S.C. § 1927. Dorado has not responded to Dial's motion other than to submit a one-page response in which he states either "admit," "deny," or "cannot admit or deny" to each paragraph of Dial's motion for summary judgment.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party must identify the specific portions of the total record which it believes establishes the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party to show through specific evidence that a genuine issue of fact remains on issues on which the non-movant bears the burden of proof at trial. Id. A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986); Encelia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). Although a bare contention that an ...


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