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Arvell Irish and Leslie Moore v. Jewel Food Stores

February 22, 2012


The opinion of the court was delivered by: Ames F. Holderman, Chief Judge:


On November 11, 2010, Arvell Irish and Leslie Moore filed a complaint (Dkt. No. 1) alleging that their employer Jewel Food Stores, Inc. ("Jewel") is liable under 42 U.S.C. § 1981 for discriminating against them on the basis of race by subjecting them to a hostile work environment. Pending before the court is Jewel's Motion for Partial Summary Judgment (Dkt. No. 59), seeking to dismiss Irish and Moore's claim that they are entitled to punitive damages. For the reasons listed below, Jewel's motion is denied.


Arvell Irish and Leslie Moore are both African-Americans who work as janitors at Jewel's Distribution Center in Melrose Park, Illinois. (Dkt No. 61 ("Def.'s SMF") ¶ 3.) Janitors are supervised by maintenance supervisors. (Id. ¶ 10.) At the time of the incidents at issue in this case, the maintenance supervisors over Irish and Moore were Ronald Alphonse, Jerry Richmond, Walter Crenshaw, Mohammed Khan, Ron Pezdek, and Dave Spankroy. (Id. ¶¶ 10-12; Dkt No. 92 ("Pl.'s SMF") ¶ 7.) The maintenance supervisors reported to Curtis Maddin, who reported to Mark Michonski. (Def.'s SMF ¶ 13.) Michonski has the authority to hire and fire janitors in consultation with other managers. (Id.)

Jewel submitted the affidavit of Dennis Dwyer, the Association Relations Manager at the Melrose Park Distribution Center, which states that maintenance supervisors have no authority to hire or fire employees, and that they may not discipline employees except for issuing attendance points for poor attendance in accordance with company policies, and with no exercise of discretion. (Id. ¶¶ 14-15.) Irish and Moore deny that the authority of maintenance supervisors is so limited, and cite incidents in which maintenance supervisors responded to complaints of harassment by stating that they would take care of it. (Dkt. No. 92 ("Pl.'s Resp. to Def.'s SMF") ¶ 15.) They also submitted evidence that Richmond once sent an employee home, and that Crenshaw once "wrote up" Moore for spending too long on a smoke break. (Pl.'s SMF ¶ 7.)

Jewel maintains policies prohibiting harassment and discrimination, (Def.'s SMF ¶¶ 15-16), and its employees receive periodic training in the terms of those policies, (Id. ¶¶ 19-20). The policies instruct employees to report any concern of harassment or discrimination, first to their immediate supervisor, then to the Department Manager, and lastly to the Facility Manager, to the Human Resource Department, or to Jewel's anonymous toll-free complaint Hotline. (Id. ¶ 18; Pl.'s SMF ¶ 10.) Irish and Moore were both aware of the Hotline. (Def.'s SMF ¶ 22.)

This action involves several incidents in which Irish and Moore allege that their fellow janitors racially harassed them. In one incident, Irish heard fellow janitor Wilfredo Soto, who is Hispanic, say that he "hates working with these dumb niggers." (Id. ¶ 33; Def.'s Ex. 2, at 54.) Soto was referring to African-American employees of another company that unloaded trucks for Jewel. (Def.'s Ex. 2, at 54-55.)

In another incident in the spring of 2006, Irish heard Soto say "she looked like a spook." (Def.'s SMF ¶ 34.) Although Irish asserted that he believed that Soto was speaking of a black female janitor, he stated that his back was turned and he did not hear who Soto was referring to. (Id.; see also Def.'s Ex. 2, at 73-76.) Irish reported the incident to a maintenance supervisor. (Def.'s SMF ¶ 34.)

In early 2008, Irish heard Soto say "lazy niggers" in the locker room while laughing and talking in Spanish with Jaime Guzman, another Hispanic janitor. (Id. ¶¶ 4, 35.) Irish reported the incident to Richmond, who said he would take care of it and later told Irish that he had spoken to Soto about his behavior. (Id. ¶ 35.) Moore also recalled an incident in which he and Irish were called "lazy niggers," but he recalled that Guzman, not Soto, made the comment. (Id. ¶ 38.) Moore reported that incident to Richmond and Alphonse. (Id.) Guzman denies ever calling anyone "lazy niggers." (Id.) Two weeks later, Irish saw Soto sabotage his work area by poking holes in a soap dispenser. (Pl.'s SMF ¶ 16.) Irish reported the incident to Richmond, who said he would talk to Soto. (Id.; see also Pl.'s Ex. 1, at 93.)

Later in 2008, Moore heard Soto and Guzman speaking in Spanish and reported that when Moore and Irish turned around, Soto and Guzman started laughing. (Def.'s SMF ¶ 36.) Moore believed that Soto and Guzman had been making racial comments about him. (Def.'s Ex. 3, at 94.) Moore told Richmond that they were "messing" with him, and Richmond later told Moore that he had spoken with Guzman and Soto, who denied that they were talking about Moore and Irish. (Def.'s SMF ¶ 36.)

A few days later, Guzman sprayed Moore with the overspray from a power washer, and continued to do so after Moore asked him to stop. (Id. ¶ 37.) Moore reported the incident to Richmond, who spoke to Guzman about it. (Id. ¶ 38.) A few months later, Guzman again sprayed Moore while power washing, causing Moore's gloves to get soaked. (Id. ¶ 39.) After Moore had already gotten another pair of gloves, Guzman approached him, said "[y]ou say Guzman take your gloves?" and threw a pair of gloves at Moore, hitting him in the chest. (Id.). Moore reported the incident to Alphonse and Richmond, and suggested to them that they report the incident to Maddin and Michonski. (Id.) Alphonse and Richmond told Moore that it didn't need to go any further, because Moore and Guzman could both lose their jobs. (Id.)

In the fall of 2008, someone poured ammonia into the urinals that Irish was supposed to clean. (Id. ¶ 40.) Irish told Richmond and Khan that someone had sabotaged his work area, and that he believed it to be Soto. (Id.) Later, Soto said, "lazy black ass, black snitch" to Irish as they passed each other, an incident Irish also reported to Richmond. (Id.) Irish does not know if Richmond did anything in response to this incident. (Pl.'s SMF ¶ 17.)

A few months later in early 2009, Irish heard Guzman tell Moore to "shut up and stop crying like a little bitch." (Id. ¶ 18.) Irish and Moore reported the incident to Alphonse, who spoke to Guzman and told him to stop. (Id.; Pl.'s Ex. 1, at 118.) Also in early 2009, Irish heard Soto tell Richmond that he wasn't going to work on a particular cleaning project because "you don't make Irish black ass do it." (Def's SMF¶ 41.) Later, Irish heard Soto say to Guzman in response to another assignment that "[t]hey never make the black guys do it." (Id. ¶ 42.) In another incident, Irish heard Soto refer to a former janitor and say "that black bitch don't get made to do no work." (Id. ¶ 43.) Irish reported the incident to Alphonse or Khan. (Id.)

A few weeks later, Irish heard Soto call a female African American janitor a "black bitch." (Pl.'s SMF ¶ 19.) Irish reported the incident to Alphonse or Khan. (Id.) Shortly thereafter, Irish overheard Soto in the coffee room saying "Irish dumb black ass didn't make no coffee" and calling Irish a "black dumb nigger." (Def.'s SMF ¶ 44.) Irish reported the incident to Richmond and Alphonse, who told Irish to ignore Soto and that they would take care of it. (Id.) Richmond and Alphonse also warned Irish not to complain to Maddin because it might create a bigger problem, and because Irish might be punished. (Pl.'s SMF ¶ 19.) A few weeks later Irish heard Guzman call him "a lazy black monkey" and reported the incident to Richmond. (Def.'s SMF ¶ 45.) Two weeks thereafter, ...

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