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Seifert v. Dominick's Finer Foods

March 17, 2008

FRED SEIFERT, PLAINTIFF,
v.
DOMINICK'S FINER FOODS, DEFENDANT.



The opinion of the court was delivered by: Wayne R. Andersen United States District Judge

Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Fred Seifert ("Seifert") filed this action against defendant Dominick's Finer Foods ("Dominick's") alleging illegal discrimination because of Seifert's age under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., and illegal discrimination because of his sex and religion under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. This matter is before the court on Dominick's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted.

BACKGROUND

Dominick's is a supermarket chain with in-store pharmacies in most of its Chicago metropolitan locations. Seifert, a Jewish male, born on June 25, 1932, began working for Dominick's as a full-time registered pharmacist on February 27, 1995. Approximately five years after he was hired, Seifert voluntarily moved into a part-time, floater pharmacist position. As a floater pharmacist, Seifert worked at various Dominick's pharmacies in the Chicagoland area for approximately 34 hours each week. Each of Seifert's shifts was generally staffed with one or two registered pharmacists, including Seifert, and occastionally a pharmacy technician, who assisted registered pharmacists during those shifts.

Dominick's has in place a sexual harassment policy which prohibits conduct of a sexual nature, including "behavior that is not welcome, that is personally offensive, that fails to respect the rights of others, that lowers morale and, therefore, interferes with work effectiveness." The policy further provides that "sexual harassment may be overt or subtle and may take different forms" including "sexual innuendoes, suggestive comments, jokes of a sexual nature" and "unwanted physical contact, including touching, pinching, [and] brushing of the body." The policy provides that violations will result in discipline, up to and including suspension and termination. This policy was in place at all times relevant to this litigation.

On March 19, 2003, Seifert worked in the pharmacy at Dominick's Fox River Grove, Illinois store with two or three pharmacy technicians, one of whom was Tonya Pieri ("Pieri"). During the shift, Seifert told the pharmacy technicians a joke involving Lorena Bobbitt, who Seifert knew was notorious for amputating her husband's penis. Pieri complained to the pharmacy manager about Seifert's conduct and the pharmacy manager reported the incident to Ed Cohen ("Cohen"), Director of Pharmacy and Seifert's direct supervisor. Specifically, Pieri complained that Seifert told her a dirty joke, looked at her inappropriately, and told her about a name that means "open hole." After receiving Pieri's complaint, Cohen asked Dominick's Human Resources Department to investigate Pieri's claims. Human Resources Development Specialist Matthew Ellin ("Ellin"), a Jewish male born on December 17, 1969, was assigned to the investigation.

On March 26, 2003, Ellin spoke with Pieri about Pieri's complaint. On March 31, 2003, Ellin spoke with Seifert and the manager of the Dominick's Lake Bluff, Illinois store, where Seifert was working that day, about Pieri's complaint. During that conversation, Ellin informed Seifert that Pieri had accused Seifert of telling an inappropriate joke about a man's penis. Seifert denied telling the joke in the way that Pieri related it and agreed to not tell jokes in the future. Ellin gave Seifert a copy of Dominick's sexual harassment policy and Seifert signed a written warning.

On May 16, 2003, Seifert worked at Dominick's McHenry, Illinois store with two female pharmacy technicians. During the shift, Seifert told his two female co-workers that they should not watch late night shows, such as Jay Leno, if they did not want to hear jokes about masturbation. Following the shift, Tony Mensik ("Mensik"), Pharmacy Manager at the McHenry store, called Cohen to report that the two pharmacy technicians had complained to Mensik about Seifert's behavior. Ellin was asked to investigate the new complaints against Seifert and, on May 20, 2003, Ellin interviewed the two pharmacy technicians, who each gave Ellin a written statement in which each alleged that Seifert told jokes about masturbation and brushed up against each of them in an unwelcome manner.

On May 22, 2003, Ellin and Cohen met with Seifert at Dominick's Buffalo Grove, Illinois store. During that meeting, Ellin informed Seifert that two female pharmacy technicians from the McHenry store complained that Seifert told them an inappropriate joke on May 16, 2003. Seifert did not deny referencing masturbation during that shift, but he denied telling any jokes and told Ellin that he only warned the women about watching late night television. Cohen informed Seifert that Seifert was suspended pending Dominick's investigation of the new complaints. Following the meeting, Ellin and Cohen discussed Seifert's behavior with Dwayne Howard, Dominick's Director of Human Resources. Together, they concluded that Seifert had again violated Dominick's sexual harassment policy and should be fired. On July 7, 2003, Cohen sent Seifert a letter informing Seifert that he was fired for violating Dominick's policies and procedures.

Seifert filed his complaint in this action on May 26, 2006 alleging that his firing constituted illegal discrimination because of his age under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., and illegal discrimination because of his sex and religion under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Dominick's now moves for summary judgment on all counts.

DISCUSSION

A. Legal Standards

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists only if "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 (1986). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). The existence of a factual dispute is not sufficient to defeat a summary judgment motion, instead the nonmoving party must present definite, competent evidence to rebut the summary judgment motion. See Butts v. ...


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