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El-Bakly v. Autozone

May 8, 2008

MOUSTAFA EL-BAKLY PLAINTIFF,
v.
AUTOZONE, INC., A NEVADA CORPORATION ROB HARRIS, JUAN GUTIERREZ, AND CHRIS RAMOS DEFENDANTS.



The opinion of the court was delivered by: Hon. R. Dow

DEFENDANTS' RENEWED MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR JUDGMENT AS A MATTER OF LAW AND, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL

NOW INTO COURT, through undersigned counsel, come AutoZone, Inc. ("AutoZone"), Rob Harris, Juan Gutierrez, and Chris Ramos (collectively, "Defendants"), and respectfully submit this Renewed Motion for Judgment as a Matter of Law.*fn1

I. Background

On April 22, 2008, at the close of Plaintiff's case-in-chief, Defendants moved for judgment as a matter of law ("JMOL") pursuant to Fed.R.Civ.Pro. 50(a), and submitted a memorandum in support on April 23, 2008. [Docket No. 136]. This Court took Defendants' motion under submission and allowed the case to proceed to verdict.

On April 24, 2008, the jury returned a verdict AGAINST Plaintiff on all of the following claims: (1) defamation and intentional infliction of emotional distress by Rob Harris; (2) defamation and intentional infliction of emotional distress by Chris Ramos; (3) defamation and intentional infliction of emotional distress by Juan Gutierrez; (4) defamation by AutoZone; (5) discrimination by AutoZone; (6) retaliation by AutoZone; and (6) a hostile work environment by supervisors of AutoZone. The jury found in Plaintiff's favor on one single claim - - a hostile work environment by some unidentified co-workers. The jury decided Plaintiff was not entitled to any compensatory damages on this claim. However, the jury awarded Plaintiff $8,000 in punitive damages.

II. Defendants Are Entitled to Judgment As a Matter of Law

As the jury returned a verdict in the Defendants' favor on all but one claim, co-worker harassment, Defendants will focus this Renewed Motion for Judgment as a Matter of Law on the co-worker harassment claim as well as Plaintiff's claim for punitive damages. Defendants will address Plaintiff's other claims in its contemporaneously filed Opposition to Plaintiff's untimely Motion for Judgment as a Matter of Law ("Plaintiff's Motion"). [Docket No. 142].

A. There Is No Legally Sufficient Evidence to Support Plaintiff's Co-Worker Harassment Claim

Judgment as a matter of law is proper "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.Pro. 50.

The reason Defendants objected to the giving of Jury Instruction No. 19, "Harassment by Co-Employee (Hostile Work Environment)" is that Plaintiff never has identified any co-workers who allegedly harassed him. Rather, Plaintiff has consistently claimed that he was harassed by the very supervisors whom he sued, Mr. Harris, Mr. Ramos and Mr. Gutierrez. In his EEOC charge (Plaintiff Exh. 1), Plaintiff swore under oath that he was "harassed and insulted by my various managers . . . on the basis of my race, national origin, and/or religion." (attached for the Court's convenience as Exhibit 1) (emphasis added). In his EEOC charge, Plaintiff identified those managers as the three individuals whom he sued in this litigation (Mr. Harris, Mr. Ramos, and Mr. Gutierrez), as well as Bob Navarro and Ricardo Maldonado. As Plaintiff failed to identify any co-worker harassment in his EEOC charge, he failed to exhaust administrative remedies on this claim, and the Court lacks jurisdiction over that claim. Hottenroth v. Village of Slinger, 388 F.3d 1015, 1035-36 (7th Cir. 2004) (affirming district court's decision that employee failed to exhaust her administrative remedies over a hostile work environment claim because the employee failed to allege specific evidence concerning this claim and agreeing with the district court that employee was, therefore, barred from pursuing such a claim).Accordingly, judgment as a matter of law on this claim is appropriate.

Even if the Court had jurisdiction over such a claim of co-worker harassment, Plaintiff failed to establish all of the elements of such a claim, namely: (1) that he was subjected to unwelcome harassment; (2) that the harassment was based on his religion or national origin; (3) that the harassment was severe or pervasive enough to alter the conditions of his employment and create an abusive working environment (both from the standpoint of a reasonable person and from his own perspective); and (4) that his employer knew or should have known about the harassment and failed to act. Fuller v. Caterpillar, Inc., 124 F. Supp. 2d 610, 614 (N.D. Ill. 2000), accord, Harris v. Forklift Sys. Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). These are conjunctive elements; therefore, Plaintiff must prove each element by a preponderance of the evidence or else judgment must be for AutoZone. Fuller, 124 F. Supp.2d at 614.

Plaintiff failed to establish any of these four elements, let alone all of them. First, Plaintiff failed to offer any evidence that he was subjected to unwelcome harassment by a co-worker. Plaintiff not only failed to identify any co-worker who harassed him in his EEOC Charge, in his Amended Complaint, in the Pretrial Order, and in his trial testimony (excerpts from Plaintiff's trial testimony attached as Exhibit 2, part I*fn2 , pp. 15-16, 24-26, 30-33), but also Plaintiff failed to identify in his own Motion even ONE non-managerial employee who allegedly harassed him. Plaintiff's sole witness, Jose Jimenez, similarly failed to identify any specific co-worker who harassed Plaintiff. Mr. Jimenez testified only that he heard isolated comments about Al Quaeda when there was a news report on television. (Excerpts from Mr. Jimenez's trial testimony attached as Exhibit 3, pp. 112-113). Mr. Jimenez testified that he does not know when after the Iraq War these alleged comments were made*fn3 , by whom they were made, or how often they were made. (Jimenez trial testimony, pp. 112-114). In fact, Mr. Jimenez conceded that he only worked at the Franklin Park AutoZone store with Plaintiff until the fall of 2003 and only worked there two or three days per week. (Jimenez trial testimony, pp. 107-08, 114). Significantly, Mr. Jimenez was not even able to say whether these comments were ever directed at Plaintiff. (Jimenez trial testimony, p. 113).

Accordingly, Plaintiff failed to offer any evidence concerning the second and third elements of his claim - - that any unwelcome comments were made due to Plaintiff's national origin/religion or that the comments were severe or pervasive and that an objectively reasonable person would view his work environment as hostile. Green v. Illinois Department of Children and Family Services, 439 F. Supp. 2d 841, 853-54 (N.D. Ill. 2006) (conclusory statements not grounded in specific facts were insufficient to demonstrate that the work environment was objectively hostile because there was no way to determine the frequency of the claimed harassing conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the employee's work performance).

Plaintiff also did not prove the subjective prong of the third element because Plaintiff testified that he was able to do his job well throughout his employment.*fn4 (Plaintiff's trial testimony, Part II, p. 70). Singh v. Town of Mount Pleasant, 172 Fed. Appx. 675, 681 (7th Cir. 2006) (agreeing with the district court that when employee failed to present evidence that alleged harassing comments interfered with her work performance or were physically threatening or humiliating, "this failure alone defeats a prima facie case for hostile work environment"); Jones v. Winn-Dixie Stores, Inc., 75 F. Supp.2d 1357, 1367 (S. D. Fla. 1999) (recognizing that an employee's testimony that he was able to do his job belied any argument ...


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