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El-Bakly v. AutoZone Inc.

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

April 25, 2008

MOUSTAFA EL-BAKLY Plaintiff,
v.
AUTOZONE, Inc., a Nevada Corporation, Rob Harris, Juan Gutierrez, and Chris Ramos Defendants,

          LUIS A. OVIEDO ATTORNEY FOR PLAINTIFF

          PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR JUDGMENT AND CROSS-MOTION FOR JUDGMENT

          R. DOW JUDGE

         Now comes the Plaintiff, Moustafa El Bakly, through counsel and, pursuant to Federal Rule of Civ. P. 50, hereby submits his response and memorandum in support of his Response to Defendants' Motion For Judgment as a Matter of Law and his cross-motion and memorandum in support of his Motion for Judgment as a Matter of Law.

         I. Background

         A four day jury trial was held beginning on April 21, 2008 on five claims brought by former Autozone employee Moustafa El Bakly. Mr. El Bakly sued Autozone claiming that he had been subjected to national origin and religious discrimination in the form of disparate treatment, harassment and hostile work environment, and further sued three individual defendants, Chris Ramos, Juan Gutierrez and Rob Harris, who were all his managers at Autozone, for infliction of emotional distress and defamation.

         Evidence presented at trial by the Plaintiff showed that on or about June 2003, manager Chris Ramos made comments that were offensive to Mr. El Bakly's religion or national origin in the presence of both Store Manager Rob Harris and District Manager Jose Gomez. Plaintiff's Exhibit 11d at p. D-00122, Plaintiff's Exhibit 11c at p. D-00120, and testimony of Mr. Jose Jimenez and Mr. Moustafa El Bakly and Def. witness Ricardo Maldonado. Both Rob Harris and Jose Gomez held positions charged with investigating such problems within the Autozone chain of command. Def. Exhibit 53 at p. D-00153 and D-00155 (Autozone Stores Handbook) and testimony of Mr. Jose Jimenez. The evidence also showed that the conduct by Ramos and other employees persisted through at least February 2004, nine months later and with frequency as regular as newspaper headlines of the Iraq War or Middle Eastern events during this point in time. Plaintiff's Exhibit 11c at p. D-00120, and testimony of Mr. Jose Jimenez and Mr. Moustafa El Bakly and Def. Witness Ricardo Maldonado. In addition, it was uncontested at trial that during the contemporaneous time period of September 2003 through June 2004, the store management subjected Mr. El Bakly to the following employment actions: 1. a series corrective actions including a write up by Enrique Alejandre (Plaintiff Exhibit 8(d), being sent home without pay before his regularly scheduled time (Testimony of Moustafa El Bakly, Juan Gutierrez, Chris Ramos, Enrique Alejandre, and Jose Gomez and Plaintiff's Exhibit 9(b) at p. D-000364; 2. a change in his job duties or responsibilities to that of driver (Plaintiff Exhibit 8(d) and testimony of Moustafa El Bakly, Rob Harris, Sheri Leonard Brinker, Jose Jimenez, Alejandro Flores 3. a change in his title, uniform and formal categorization to that of a lower non-management position (Def. Exhibit 53 at p. D-0010 (Shirt classifications); Plaintiff Exhibit 8(d); and testimony of Moustafa El Bakly, Rob Harris, Sheri Leonard Brinker, Jose Jimenez, Alejandro Flores); 4. accusations and reprimanded for alleged involvement with illegal drugs; 5. individualized monitoring for performance. 6. termination. Jury instruction 14, the jury instruction on the parties' burdens and the civil rights claims, failed to include various of these actions. That same jury instruction also explained the Defendant Autozone's Ellerth/Faragher affirmative defense but failed to state that no affirmative defense is available to Mr. El Bakly's civil rights claims when a supervisor's harassment culminates in a tangible employment action, such as a discharge, demotion, or undesirable assignment. Gentry v. Export Packaging Co., 238 F.3d 842, 846 (7th Cir.2001) (quoting Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 at 765.

         In this case, the evidence was clear and undisputed that the discrimination and hostile work environment continued through a period of at least February 2004, during which time it also evolved into a series of tangible and adverse employment actions as described above (reduction in force, being sent home early, reprimands, accusations), and ultimately culminated in termination in June 2004.

         After approximately two and a half hours of deliberation, the jury found that Autozone was liable on the hostile work environment claim for harassment by his co-workers based on his religion and/or national origin. The verdict form shows that the jury found for the Autozone and each of the individual Defendants on all other counts. Per the jury instructions, in order to find for the Plaintiff on his hostile work environment count, it had to have found that: Mr. El Bakly was subjected to harassment and did not welcome such conduct and felt that it made his work environment hostile and abusive, that it was unreasonably severe and pervasive and occurred because of his religion or national origin, that Defendant Autozone knew or should have known about the conduct and did not take reasonable steps to correct the situation or prevent the harassment from occurring. In order to award punitive damages for this claim, it had to have found that managerial employees with Autozone acted within the scope of their employment and in reckless disregard of the Plaintiff's civil rights. The punitive damages instruction further directed the jurors that punitive damages, if awarded, should be in an amount sufficient to fulfill the purposes of punishing a defendant for his conduct and serving as an example or warning to Defendant and others not to engage in similar conduct in the future.

         During the course of deliberations, the jury communicated one question to the Court: whether a jury may award costs as punitive damages. The Court's response referred the jury to Jury Instruction 29 and 30 and told them that they had to decide on a set amount in accordance with that instruction.

         II. Standard

         Both an appellate and a trial court's inquiry in post-trial motions for judgment as a matter of law are limited to “whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support he verdict when viewed in the light most favorable to the party against whom the motion is directed . . . In other words [courts] are limited to assessing whether no rational jury could have found for the plaintiff.” Mathur v. Board of Trustees, 207 F.3d 938, 941 (7th Cir. 2000), David v. Caterpillar, Inc., 324 F.3d 851 (7th Cir. 2003). In applying this standard, the court evaluates whether a jury reasonably could have arrived at the conclusions it did, in light of the benefit of the trial transcript and admitted exhibits as well. See Byrd v. Illinois Department of Public Health and Whitaker, 423 F.2d 696, 701 (7th Cir. 2005); Tart v. Illinois Power Co., 366 F.3d 461, 472 (7th Cir. 2004). Courts are limited to assessing whether no rational jury could have found for a given party. In doing so a court may not step in and substitute its view of the contested evidence for that of the jury's. Mathur v. Board of Trustees, 207 F.3d 938 (7th Cir. 2000).

         III. No rational jury could have found for the Defendant on Counts 1 through 5 of the Plaintiff's case.

         a. Disparate Impact and Hostile Work Environment Discrimination-Counts 1 and 3.

         As a threshold matter, the Defendant argues that the Plaintiff failed to produce evidence to support just two of four elements of his discrimination claim: that he suffered an adverse employment action; and that similarly situated individuals not in his protected class received more favorable treatment. The Plaintiff will address each of those arguments in turn, and also present its argument as to how no rational jury could have found for the Defendant on each of the other elements in these counts.

         Adverse Employment Action.

         The Seventh Circuit has provided several examples of adverse employment actions, including “termination of employment, a demotion as evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities. Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (2002). There is no requirement that an adverse employment action be quantifiable in terms of pay or benefits. Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996).

         In this case, the Plaintiff testified that he his title was changed to a less distinguished title, and that his duties and responsibilities were significantly diminished. His title and duties changed from that of commercial specialist to driver. The testimony of Autozone managers and Defendants Rob Harris, Juan Gutierrez, and a series of company records such as Plaintiff's Exhibit 8(b) at page D-00014 confirm that Mr. El Bakly had been promoted to the level of a commercial specialist on or about April of 2003. In September 2003, those duties and that title changed to the lesser position of driver. This was proven not only through Mr. El Bakly's testimony, but also through the testimony of Defendant's own witnesses: Mr. Alejandro Flores, Ms. Sheri Brinker-Leonard, and Mr. Enrique Alejandre, both of whom testified that what Mr. El- Bakly did was driver work. The Defendants' own documents, such as Defense Exhibit 20 (2/2004 Corrective Action Review), Plaintiff Exhibits 3 and 4 (Store Summary Reports and Autozone weekly schedule) all similarly reflect that Mr. El-Bakly was demoted to a “commercial driver.” Autozone's very own Store handbook, Defendants Exhibit 53, page D-001160, differentiates management from non-management employees by the color of their uniform and Mr. Rob Harris and Mr. Enrique Alejandre, in addition to others, all testified that Mr. El Bakly was forced to change uniforms to the lowest level “red shirt” contemporaneously with his change in duties and responsibilities. In addition, it was uncontested that Mr. El Bakly was reprimanded in writing on 2/2004 and that Mr. El Bakly was ultimately terminated. Thus, the evidence overwhelmingly demonstrates that Mr. El Bakly suffered an employment action.

         Similarly ...


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