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Marks v. Custom Aluminum Products

July 5, 2007


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


This matter is before this court on motions by Defendants Custom Aluminum Products, Inc. ("Custom Aluminum") and John Castoro for summary judgment pursuant to Fed. R. Civ. P. 56 and for dismissal pursuant to 28 U.S.C. § 1367(c)(3), and by Plaintiff James A. Marks for partial summary judgment on his assault claims. For the following reasons, all motions are denied in their entirety.


In assembling the recitation of material facts that follows, we have disregarded any alleged facts or purported denials that are unsupported by the record or do not comply with Local Rule 56.1. See Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).*fn1

Custom Aluminum is an Illinois aluminum extrusion and building products manufacturer. John Castoro ("Castoro") is the Chief Executive Officer and owns approximately 50% of Custom Aluminum's stock. However, Castoro works only 20-25 hours per week, overseeing renewal of the company's insurance policies, office procedures, some inventory matters, and a small part of the purchasing function. Steven Dillett, as President since late 2004, is responsible for overall profitability and long-term positioning structure for the company, and James Castoro, John's father, is chairman.

In 1994, Plaintiff James Marks was hired as a general foreman. Five years later, he was promoted to Plant Manager and held that position until his termination on October 12, 2005. Considerable dispute exists with regard to Marks' role at Custom Aluminum. Defendants contend that Marks' performance as Plant Manager was lacking and that he was kept on solely because of his relationship with Castoro, a characterization with which Marks disagrees.

Both Dillett and James Castoro testified that they felt Marks wasn't performing his duties and they sought to transfer his job responsibilities to other individuals. These changes were noted by Marks, who by late 2004 had become concerned about the reduction in his duties and his future at the company. Notwithstanding this concern, Marks notes that he had not received any negative performance evaluations, that he kept receiving raises, and that Castoro himself thought Marks was doing "a fine job."

The parties also dispute the nature of the friendship between Marks and Castoro. The two men socialized outside of work, played video golf together, and exchanged gifts. At work, they frequently took long lunches together, accompanied by Patrick Breslin, personal assistant to John Castoro. Marks and John Castoro had frequent physical interactions; while Defendants describe this as "playful conduct, such as hitting each other on the arm and giving one another bear hugs," Marks describes it as physical violence inflicted upon him despite his objections and explains that he did what Castoro told him to do, whether personal or professional, out of fear for his job. Although the parties dispute the extent to which Marks acted out of fear of Castoro, it is undisputed that Castoro owns knives, brought them to work, and on one occasion used a knife to shave the hair off Marks' and Breslin's arms. Castoro also kept a gun in his office because he feared that terminated employees might return. Castoro frequently brought his Rottweiler to work, an animal that terrified several employees at Custom Aluminum and bit at least one deliveryperson. One employee was terminated shortly after complaining about the dog. On one occasion, Castoro brought two Rottweilers to the office and they fought in the hallway, splattering blood on the walls.

The series of events giving rise to this lawsuit began on July 25, 2005, when Marks was injured at work. He filed a workers' compensation claim two days later. Although Marks was usually responsible for handling workers' compensation claims at Custom Aluminum, Dillett did handle some claims and was aware of Marks' claim.

Marks was out of work from August 30 or 31 until September 19, 2005. The pain from this injury was so severe that Marks was admitted to the hospital and treated with "a lot of painkillers." When he returned to work, he was restricted from lifting using the right side of his body and had to attend physical therapy three to four days per week, for about two hours per day beginning at 1 or 1:30 p.m. Marks complained frequently to other employees about the severe pain he suffered. His co-worker, Elizabeth Ayala, noted that he looked like he was in pain constantly.

Marks also informed Castoro that Castoro could no longer hit him because of the injury. Castoro denies that Marks ever made such a request, but Breslin, Castoro's personal assistant, also heard Marks telling Castoro not to hit him anymore. Marks complained at least once to Steve Dillett about Castoro hitting him, but Dillett said nothing to either Marks or Castoro. Ayala witnessed Castoro hitting Marks, describing such interaction as "kidding and playing around" in which Marks would tell Castoro not to hit him on his bad (right) arm and offer up his good (left) arm instead. Ayala heard Marks say "ow" on the occasions he was hit.

Upon Marks' return, Castoro made comments to Marks such as "you've got a bad flipper," "you're no longer fun" "you're no good to me," and "I won't have my lunch buddy anymore." Marks alleges, but Castoro denies, that he described Marks as "damaged goods." While Marks says that such comments made him think that his job was on the line over his going to therapy, Castoro claims that he was simply hurt that Marks could not go to lunch regularly, or if he was able to attend, could not drink or play video games as they had once done.

On October 4, 2005, Dillett and James Castoro met with Marks to provide him with new job responsibilities, a move Defendants explain as an attempt to keep Marks on because of his friendship with Castoro. This new job description did not include some of Marks' prior job responsibilities.

On Friday, October 7, 2005, John Castoro hit Marks on his uninjured arm twice. The first time, Marks alleges that the blow hurt him so badly that he went down to his knees in pain, and asked Castoro to stop hitting him. The second time Castoro hit him, Marks responded by slapping Castoro on the head - an action Castoro testified he understood to mean that Marks didn't want Castoro to hit him anymore. Castoro admits only that he "slapped" Marks on his left arm twice. Marks apologized to Castoro for hitting him, and later that day, told Dillett about the incident. Dillett took no action against Castoro or Marks.

On Monday morning, October 10, Castoro entered Marks' office where Marks was discussing plans for the Christmas party with Ayala. According to Castoro, he "greeted" Marks by "slapping" his left (uninjured) arm. Marks responded by swearing at Castoro and throwing a pen. Castoro claims the pen was directed at him but Marks says he threw it on his desk and the pen ricocheted to hit Castoro. Castoro responded by telling Marks to leave; he also said Marks should take some time off and suggested that he might not need to come back at all. Castoro had the authority to fire employees and had done so in the past by sending the employee home in the middle of the day. Accordingly, Marks left, believing that he had been fired.

Shortly thereafter, Castoro was advised that the company had received a call from "an insurance person, maybe a workers' compensation person" who inquired as to Marks' employment status, having learned that Marks was terminated. Castoro then shut off Marks' company cell phone service and changed the locks on his office door.

On the afternoon of October 10, Marks contacted Dillett and James Castoro and told them of that morning's incident with Castoro. Marks told Dillett that Castoro had hit him and that "if he didn't take care of it, [he would] have no other option other than to go to the police." At this point, ...

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