FILE 0
APR 1 3 2006 Nf\

PO.~ aLPM"ICUHA'iLDWIIT. RICT

HE UNITED STATES DISTRICT C.OURT E NORTHERN DISTRICT OF ILLINOIS

• •.

EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CEISEL MASONRY,INC. Defendant.

) )
) 06CV2075
~ JUDGE LElNENWEBER ~ MAGISTRATE MASON

)

)

)

JURY TRIAL DEMAND

)

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U,S.C. § 2000c et seq. ("Title VII"), and Title I of the Civil Rights Act ofl991, 42 U.S.C. § 1981a, to correct unlawful employment practices on the basis of national origin and to provide appropriate relief to Domingo Ramirez, Cuahctemoc Guerrero, Francisco Algarin, and a class of Hispanic cmployees who were adversely affected by such practices.
JURISDICTION AND VENUE 1. This action is brought by the United States Equal Employment Opportunity Commission to enforce the provisions of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.c. § 2000e et seq. 2. This action is authorized and instituted pursuant to § 706(f)(1) and § 706(f)(3) of Title VlI, as amended, 42 U.S.c. §2000e-5(f)(l) and §2000e-5(f)(3), and § 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981A. 3. This court has jurisdiction ofthis action pursuant to 28 U.S.c. §§ 451, 1331, 1337, 1343, and 1345. 4. The unlawful acts alleged below were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Illinois, Eastern Division.

PARTIES 5. Plaintiff: Equal Employment Opportunity Commission ("EEOC" or the "Commission"), is an agency of the United States of America charged with the administration, interpretation, and enforcement or Title VII, and is expressly authorized to bring this action by § 706(f)(I) and (3) ofTitle VII, 42 U.S.C. §2000e-5(f)(I) and (3). 6. At all relevant times, Defendant Ceisel Masonry Inc., has continuously been a corporation doing business in the State of I11inois and the Village of Northbrook, Illinois. 7. At all relevant times, Ceisel Masonry, Inc. has continuously had at least fiftecn (15) employees. 8. At all relevant limes, Ceisel Masonry, Inc., has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000c(b), (g) and (h).
STATEMENT OF CLAIMS 9. More than thirty (30) days prior to the institution of this lawsuit, Domingo Ramire.-:, Cuahetemoc Guerrero, and Francisco Algarin filed charges of discrimination with the Commission alleging violations of Title VII by Ceisel Masonry, Inc. 10. All conditions precedent to the institution of this lawsuit have been fulfilled. II. Since at least 2000, Defendant has engaged in unlawful employment practices in violation of §703(a) of Title VII, 42 U.S.c. § 2000e-2(a). Such unlawful employment practices include subjecting Domingo Ramirez, Cuahetemoc Guerrero, Francisco Algarin, and a class of Hispanic employees to harassment and different terms and conditions because of their national origin. 12. The result of the practices complained of in paragraph II has been to deprive Domingo Ramirez, Cuahetemoc Guerrero, Francisco Algarin, and a class of Hispanic employees of equal employment opportunities and otherwise adversely afIect their status as employees because ofthcir national origin. 13. The unlawful employment practices complained of above were intentional. 14. The tmlawCul practices complained of above were done with malice or with reckless

indifference to the federally protected rights of Domingo Ramirez, Cuahetemoc Guerrero, Francisco Algarin, and a class of Hispanic employees.
PRAYER FOR RELIEF WHEREFORE, the Commission requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practices which discriminate on the basis of national origin; B. Order Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for its employees regardless of national origin, and which eradicate thc effects of its unlawful employment practices; C. Order Defendant to make whole Domingo Ramire"., Cuahetemoc Guerrero, Francisco Algarin, and a class of Hispanic employees by providing compensation for past and future pecuniary losses resulting from those unlawful employment practices, including medical expenses, in amounts to be determined at trial; D. Order Defendant to make whole Domingo Ramirez, Cuahetemoc Guerrero, Francisco Algarin, and a class of Hispanic employees by providing compensation for past and future non-peclmiary losses resulting from those unlawful employment practices, including emotional pain, Sllffering, loss of enjoyment of life, humiliation, and inconvenience, in amounts to be determined at trial; E. Order Defendant to pay Domingo Ramirez, Cuahetemoc Guerrero, Francisco Algarin, and a class of Hispanic employees punitive damages for its malicious and reckless conduct in amounts to be detennined at trial. F. Prohibit Defendant from discriminating against any individual for engaging in protected activity under Title VII of the Civil Rights Act of 1964, or for opposing practices made unlawful by Title VIl, or for participating in this lawsuit; G. Grant such further relief as this Court deems necessary and proper in the public interest; and H. Award the Commission its costs in this action.

JURY TRIAL DEMAND
The Commission requests ajury trial on all questions offact raised by the Complaint.
Respectfully submitted, James Lee Deputy General Counsel
Gwendolyn Young Reams Associate General Counsel Equal Employment Opportunity Commission 1801 "1," Street, N.W. Washington, D.C. 20507

RIC ar

nzek

Trial Art may

Equal Employment Opportunity Commission 500 West Madison Street, Suite 2800 Cbicago, Illinois 60661 (312) 886-9078

 
 Case 1:06-cv-02075 Document 20 Filed 07/05/2006 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

and

DOMINGO RAMIREZ and CUAUHTEMOC GUERRERO,

CIVIL ACTION NO. 06 CV 2075

Intervenors,

v.

CEISEL MASONRY, INC. Defendant.

UNOPPOSED MOTION FOR REASSIGNMENT BASED ON RELATEDNESS Intervenors, Domingo Ramirez and Cuauhtemoc Guerrero, pursuant to Northern District of Illinois Local Rule 40.4, request this Court make a finding that the lawsuit captioned Ramirez et al. v. Ceisel Masonry, Inc., (Case No. 06 CV 2084) currently pending before the Honorable Wayne R. Anderson is sufficiently related to the case at bar and it is appropriate for the Ramirez case to be reassigned to this Court. The Equal Employment Opportunity Commission and Ceisel Masonry do not oppose this Motion. In further support of this Motion, Intervenors state as follows: 1. Local Rule 40.4 of the United States District Court for the Northern District of Illinois requires a showing “that the cases are related under Local Rule 40.4(a) and that reassignment is appropriate pursuant to Local Rule 40.4(b).” Teachers Retirement Sys. Of Louisiana v. Black, No. 04-C-834, 2004 U.S. Dist. LEXIS 10259, at *6 (N.D. Ill. May 27, 2004).

Case 1:06-cv-02075 Document 20 Filed 07/05/2006 Page 2 of 31
2. According to Local Rule 40.4(a) “cases are related if they: (1) involve the same property; (2) involve the same issues of fact or law; (3) grow out of the same transaction or occurrence; or (4) in a class action, one or more of the classes involved are the same.” Mach. Movers v. Joseph/Anthony, Inc., No. 03-C-13631, 2004 U.S. Dist. LEXIS 13631, at * 5-6 (N.D. Ill. July 15, 2004); Freeman v. Bogusiewicz, No. 03-C-2908, 2004 U.S. Dist. LEXIS 15723, at *5-6 (N.D. Ill. Aug. 10, 2004) (granting reassignment where, under Local Rule 40.4(a), the plaintiff’s claims in both cases involve the same facts, the same law and grow out of the same incident).
3. In our case, for the following reasons the Ramirez case is sufficiently related within the meaning of Local Rule 40.4(a) to the instant case:
a. On April 13, 2006, the Equal Employment Opportunity Commission brought this case pursuant to Title VII, 42 U.S.C. § 2000e (“Title VII”) on behalf of a class of Hispanic workers alleging that these workers had been subject to discriminatory harassment by their employer, Ceisel Masonry Inc. (“Ceisel”). (Ex. A, EEOC Complaint.)
b. Similarly, on April 13, 2006, the Intervenors, individually and on behalf of a class of Hispanic workers, filed another suit in the Northern District of Illinois alleging that Ceisel’s conduct of permitting and promoting the prolonged and unlawful harassment of a class of Hispanic workers violates the Civil Rights Act of 1870, 42 U.S.C. § 1981. Thereafter, on June 19, 2006, the Intervenors amended their complaint to include an additional named plaintiff and an individual retaliatory discharge claim under Section 1981 and Title VII. (Ex. B, Ramirez Amended Complaint.)
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Case 1:06-cv-02075 Document 20 Filed 07/05/2006 Page 3 of 31
c. On June 8, 2006, the Intervenors successfully petitioned this Court to intervene into this case based on Ceisel’s unlawful employment practices. (Ex. C, Intervenor’s Complaint.)
d. Both the Ramirez case and the present case seek similar equitable relief as well as similar compensatory and punitive damages in amounts sufficient to punish Ceisel and to deter Ceisel from continuing with its unlawful racial harassment.
4. Because the Ramirez case and the present case involve the same discriminatory conduct by the same alleged offender during the same period of time and seek similar relief under both Title VII and § 1981, the Ramirez case involves many of the same issues of law and fact as are involved in the case at bar (e.g., whether the employer is liable for its foremen’s frequent use of terms such as “wetback” and “spic,” whether the harassment was severe and/or pervasive, whether defendant took reasonable steps to prevent and correct the harassment, and whether those facts suppose punitive damages).
5. Lastly, both cases involve the same plaintiff class: Hispanic workers employed by Ceisel who were subjected to verbal abuse on account of their race and national origin.
6. “Rule 40.4(a) does not require complete identity of issues in order for cases to be considered related.” Mach. Movers, 2004 U.S. Dist. LEXIS at *6 (internal quotations removed).
7. Accordingly, the points of commonality between these two cases have been sufficiently detailed for this Court to find under Local Rule 40.4(a) that the Ramirez case is related to the case at bar. See Freeman, 2004 U.S. Dist. LEXIS at *5-6.
8. Once the cases have been found to be related, Local Rule 40.4(b) requires four additional factors to be met in order to establish that reassignment is appropriate. They are:
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(1) both cases must be pending in the Northern District of Illinois; (2) the handling of both cases by the same judge is likely to result in a substantial savings of judicial time and effort; (3) the earlier case has not progressed to the point where designating a later filed case as related would be likely to delay the proceedings in the earlier case substantially; and (4) the actions are susceptible to disposition in a single proceeding. United States District Court for Northern District of Illinois Local Rule 40.4(b).
9. The following demonstrates that the Intervenors, under Local Rule 40.4(b), have not only shown that the cases are related, but also that it is appropriate to reassign the Ramirez case to this Court:
a. First, both the Ramirez case and the case at bar are pending in the United States District Court for the Northern District of Illinois.
b. Second, because both cases involve the same parties and the same common issues of law and fact (as detailed above), the handling and management of both of these actions by the same judge is likely to result in a substantial saving of judicial time and effort. For example, a summary judgment motion in either case would argue the same material issues of fact and the same issues of law. In other words, it would save judicial time and effort to have only one judge hear both cases.
c. Third, the only responsive pleading filed in this case thus far has been the answer, and Ceisel is due to respond to the Ramirez Amended Complaint by July 5, 2006. No discovery has taken place, and no other substantive motion has been filed. Accordingly, neither case has progressed to the point where a finding of relatedness would substantially delay the proceedings in this matter.
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Case 1:06-cv-02075 Document 20 Filed 07/05/2006 Page 5 of 31 d. Fourth, as the two cases involve the same parties, the same common factual issues, common legal issues and similar remedies (both cases have requested trial by jury), the cases are susceptible of disposition in a single proceeding. Lawrence E. Jaffe Pension Plan v. Household Int'l, No. 02-C-5893, 2003 U.S. Dist. LEXIS 7466, at *7-8 (N.D. Ill. May 5, 2003) (Judges of the United States District Court for the Northern District of Illinois have ruled that a movant satisfies the fourth condition that reassignment would be susceptible to disposition in a single proceeding “if issues of both law and fact are the same in the related cases.”).
10. Accordingly, the elements have been met to establish that reassignment is appropriate under Local Rule 40.4(b).
11. Finally, the Equal Employment Opportunity Commission (Plaintiff in this case) and Ceisel (Defendant in both cases) do not oppose this Motion.
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WHEREFORE, Intervenors’ Domingo Ramirez and Cuauhtemoc Guerrero respectfully request that this Court enter an order pursuant to Local Rule 40.4 finding that the Ramirez case (No. 06 CV 2084) is related to the case at bar and that reassigning the Ramirez case to this Court is appropriate. Dated: July 5, 2006
Respectfully submitted,

Laurie Wardell Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. Suite 600 100 North LaSalle Street Chicago, IL 60602-2403

s/ Daniel A. Dorfman
Kenneth M. Kliebard Todd L. McLawhorn Daniel A. Dorfman Howrey LLP Suite 3400 321 North Clark Street Chicago, IL 60610 (312) 595-1239

6

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

v. CEISEL MASONRY, INC.,
Defendant. DOMINGO RAMIREZ, CUAUHTEMOC GUERRERO, and JUAN CALDERON,
Plaintiffs,

Case No. 06 C 2075 and
Case No. 06 C 2084
Hon. Harry D. Leinenweber

v.

CEISEL MASONRY, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER Before the Court are two racial harassment suits. One brought by individual Plaintiffs, and the second brought by the Equal Employment Opportunity Commission (the “EEOC”) on behalf of a class of Hispanic employees. The cases have been consolidated based on relatedness, and the parties have filed Cross-Motions for Partial Summary Judgment. Defendant Ceisel Masonry moves for judgment on the EEOC’s claims for monetary damages on behalf of class members Jose Alvarado, Adrian Posada, German Ortiz, and Alejandro Buenrostro. (The EEOC has stipulated that it will not seek relief on behalf of Rudy Geronimo or Eduardo Mejia.) Plaintiff, in turn,

moves to bar Defendant from raising the affirmative defense identified in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). For the reasons stated below, the motions for partial summary judgment are denied.
I. FACTS Ceisel Masonry is a masonry subcontractor with its principal place of business in Northbrook, Illinois. Adalbert “Al” Ceisel (“Ceisel”) is the president and sole owner of Ceisel Masonry. Erwin Bernhardt (“Bernhardt”) is Ceisel’s Secretary-Treasurer, Project Manager, and Estimator. Don Etters (“Etters”) worked as Ceisel’s Superintendent until he passed away in December 2006 and was replaced by Tom Leakokos (“Leakokos”). The Superintendent supervises the foremen and has authority to hire, fire, lay off, and transfer Ceisel workers. Jeff Hankins (“Hankins”) and Steve Szabo (“Szabo”) both work as foremen, and Szabo occasionally has filled in as Superintendent when Leakokos was on vacation. Ceisel foremen are present at the individual job sites to supervise the work of the bricklayers and laborers, make sure the scaffolding is built correctly, and ensure compliance with safety policies. Foremen have authority to issue verbal and written discipline and safety citations, which ultimately could lead to termination of the employee. Foremen may also recommend that a Ceisel worker be hired, fired, or laid off. Plaintiff argues that Ceisel has always followed the recommendations of its foremen to
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discharge particular workers, but Ceisel denies this fact and denies that foremen have any independent authority to hire, fire, lay off, or transfer workers.
According to the complaint, Al Ceisel, Don Etters, Ceisel foremen, and other employees made numerous derogatory comments about, and directed toward, Hispanic workers. These comments included addressing or discussing Hispanic workers as “wetbacks,” “fucking Mexicans,” and “chicos.” Plaintiffs also complain about racist graffiti found on the port-a-potties at Ceisel job sites, which included swastikas and the phrases “go back to your own country,” “spics,” “cockroaches,” “this is where Mexicans belong” (pointing to the toilet), “wetbacks,” and “for a green card, take one” (pointing to toilet paper). Defendant admits that Bernhardt, Szabo, Hankins, and Al Ceisel all have seen racist graffiti in the port-a-potties at Ceisel job sites, and that Ceisel has taken no action to have the graffiti removed. Szabo also has admitted to using the terms “wetback,” “fucking Mexican,” and “chico,” and he says he heard other foremen call Hispanic employees by the same names. Ceisel denies any derogatory remarks made by Don Etters or Al Ceisel. The company further avers that the comments by foreman Szabo were made in a joking manner, as part of a back and forth daily banter between employees. Plaintiffs Domingo Ramirez, Cuauhtemoc Guerrero, and Francisco Algarin filed charges with the EEOC in January, February, and April of 2004, respectively.
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Prior to March 2004, Ceisel claims it had a policy against harassment, but it was not written. Ceisel further admits that it had not given its foremen any training or instruction that racial harassment was against company policy, and that it had not informed its workers that they would not be retaliated against if they complained of harassment. An EEOC poster was put up only at the Soldier Field job site. Although the collective bargaining agreements with both the laborers and bricklayers unions contained anti-discrimination provisions, those agreements do not define harassment or specifically mention it. Nor do they state that complaining employees are protected from retaliation.
In response to the filing of EEOC charges, Ceisel Masonry enacted its first written anti-harassment policy in March 2004. Ceisel handed the policy out to its current and new employees and read and explained the policy to its foremen. Ceisel alleges that it discusses and reaffirms its anti-harassment policy at every meeting with the foremen. Ceisel also discussed the claims of harassment with Superintendent Etters, but never interviewed the alleged victims. Even though Szabo admitted in the presence of Ceisel’s counsel that he “maybe” or “probably” used the terms “chico,” “wetback,” and “fucking Mexican,” Ceisel Masonry never instructed Szabo that it was inappropriate to say these things. Nor has Ceisel taken any action to discipline or fire Szabo or Etters in response to the EEOC complaints.
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II. ANALYSIS Summary judgment is inappropriate where the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court therefore views the evidence in the light most favorable to the non-moving party and resolves all factual disputes in that party’s favor. See Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir., 2005). However, the opposing party must go beyond the allegations and denials of its pleadings and identify specific evidence which demonstrates a genuine issue of material fact. See FED. R. CIV. P. 56(e)(2); Mills v. First Federal Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 840 (7th Cir., 1996). A factual dispute is only material when it is outcome determinative; if the undisputed facts demonstrate that one party is entitled to relief, summary judgment is still appropriate. See Collins v. American Optometric Ass’n, 693 F.2d 636, 639 (7th Cir., 1982).
A. Failure to File Timely EEOC Charges Ordinarily, an individual seeking to file suit under Title VII must make a timely charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e); Beckel v. Wal-Mart Associates, Inc., 301 F.3d 621, 622-23 (7th Cir., 2002). Defendant argues that the class members’ failure to file timely EEOC charges should bar the EEOC from recovering monetary damages on their behalf. Indeed, there is
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support for the position that the EEOC’s special enforcement authority does not give it the power to expand individual substantive rights. See E.E.O.C. v. Custom Companies, Inc., 2004 WL 765891, at *10 (N.D.Ill., Apr. 7, 2004); E.E.O.C. v. Harvey L. Walner & Associates, 1995 WL 470233, at *4 (N.D.Ill., Aug. 7, 1995).
These holdings have been brought into question, however, and Defendant’s argument has been foreclosed by the Seventh Circuit’s decision in E.E.O.C. v. Sidley Austin LLP, 437 F.3d 695 (7th Cir., 2006). Relying on E.E.O.C. v. Waffle House, Inc., 534 U.S. 279 (2002), the Seventh Circuit made clear that the EEOC’s enforcement authority is not derivative of, or dependent upon, the legal rights of individuals, even when the EEOC primarily seeks compensatory relief on those individuals’ behalf. See Sidley, 437 F.3d at 696. Accordingly, the Court squarely held that an individual’s failure to file a timely charge of discrimination did not prevent the EEOC from seeking monetary relief on his behalf. See id. at 696. Although Defendant attempts to distinguish Sidley as a case under the ADA, as opposed to Title VII, the EEOC’s enforcement power is essentially the same under both statutes, see Waffle House, 534 U.S. at 285, and the Seventh Circuit’s broad reasoning is equally applicable to this case. The failure of individual class members to file timely charges of harassment does not prevent the EEOC from seeking monetary damages on their behalf.
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B. Whether the Harassment Is Sufficiently Severe or Pervasive Not all offensive workplace behavior violates the law. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). However, when the offensive conduct is based on a protected characteristic, and it is severe or pervasive enough to alter the terms and conditions of someone’s employment, such harassment violates Title VII’s prohibition against discrimination. See 42 U.S.C. § 2000e-2(a)(1); Smith v. Sheahan, 189 F.3d 529, 532-33 (7th Cir., 1999). Where the EEOC seeks to recover monetary damages on behalf of individual employees, it must prove that the specific conduct to which each individual was exposed is itself sufficiently severe or pervasive to constitute actionable harassment. See E.E.O.C. v. International Profit Associates, Inc., 2007 WL 3120069, at *12-14 (N.D.Ill., Oct. 23, 2007). Defendant contends that the evidence is insufficient to state individualized claims of harassment on behalf of class members Alvarado, Posada, Ortiz, and Buenrostro. In determining whether a work environment is objectively hostile, the Court looks at all the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). The harassment also should be assessed in light of the workplace culture and general social
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mores. See Smith, 189 F.3d at 534-35. Simple teasing, offhand comments, and the sporadic use of abusive language are insufficient. See Faragher, 524 U.S. at 788. “The workplace that is actionable is the one that is hellish.” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir., 1997).
Jose Alvarado heard foreman Jeff Hankins say “wetback” and “fucking Mexican” every day as Alvarado walked by. During the last month of Adrian Posada’s employment, Hankins continually insulted Posada, calling Posada a “wetback” and “fucking Mexican” every time they bumped into each other. Unambiguously racial epithets such as these fall “on the more severe end of the spectrum.” Cerros v. Steel Technologies, Inc., 398 F.3d 944, 950 (7th Cir., 2005). Indeed, discussing a case involving the term “wetback,” the Seventh Circuit said it is “difficult to imagine epithets more offensive to someone of Hispanic descent.” Id. at 950-51. The Court acknowledges that the comments heard by Alvarado may not have been directed toward him, and such “second-hand harassment” is not as severe. See Smith v. Northeastern Illinois University, 388 F.3d 559, 567 (7th Cir., 2004). Nor do isolated utterances of racial epithets create a hostile working environment. See Salvadori v. Franklin School Dist., 293 F.3d 989, 997 (7th Cir., 2002). But a series of such statements certainly could result in a work environment that is hostile or offensive. See Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1456 (7th Cir., 1994). See also
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Cerros, 398 F.3d at 951 (“a sufficiently severe episode may occur as rarely as once, while a relentless pattern of lesser harassment that extends over a long period of time also violates the statute”). Plaintiff therefore succeeds in raising a genuine issue of material fact that the harassment suffered by Alvarado and Posada was sufficiently pervasive, if not also severe.
Class members Ortiz and Buenrostro do not claim the same kind of every day, continuous subjection to racial epithets. German Ortiz identifies approximately five instances in which a particular bricklayer called him “Mexican” and “landscaper,” and told Ortiz that “all Mexicans are good for is cutting grass.” Ortiz also overheard bricklayers say “wetback” and “chicos,” but does not provide evidence about the frequency of these comments. Alejandro Buenrostro identifies only two occasions on which he overheard foreman Hankins refer to others as “fucking Mexicans” and two more times that he heard Hankins say “Nobody speaks Spanish here, its America.” While perhaps insensitive, the four comments heard by Buenrostro over the course of his year and a half of employment cannot be described as severe or pervasive. Cf. Filipovic v. K & R Exp. Systems, Inc., 176 F.3d 390, 398 (7th Cir., 1999). There is also at least some doubt as to whether the comments heard by Ortiz were sufficiently severe or pervasive.
Plaintiff bolsters the claims of both Ortiz and Buenrostro with additional evidence about racist graffiti in the port-a-
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potties at Ceisel work sites. The graffiti included swastikas and the phrases “fucking Mexicans,” “cockroaches,” “wetbacks,” “spics,” and “go back to your own country.” According to Plaintiff, Buenrostro and Ortiz saw such graffiti every time they used the restroom. Continuous subjection to such graffiti clearly could suffice to demonstrate a hostile work environment. See Cerros, 398 F.3d at 951 (“If . . . [plaintiff] was subjected to graffiti calling him a ‘spic’ and ‘wetback’, directing him to ‘go back to Mexico,’ and proclaiming ‘KKK’ and “white power,’ the fact that each individual epithet may have appeared in isolation does not undo their cumulative effect”). The Court is not oblivious to the fact that crude graffiti regularly appears in public restrooms and port-a-potties. Cf. Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 (7th Cir., 1991) (court should consider the lexicon of obscenity that pervaded the workplace and the reasonable expectation of plaintiff in entering that environment). The Court further recognizes that such harassment is not as personal or direct as comments made to a specific employee. Cf. Smith, 388 F.3d at 567. But the offensive, invasive, and continuous nature of this graffiti cannot be ignored. The comments appearing in the port-a-potties represent a litany of the most offensive and clearly racial epithets possible. When an action as private as using the restroom is pervaded by such unwanted, discriminatory markings, the environment in which the employee works rightfully can be described
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as hostile and offensive. The Court cannot find as a matter of law that such conduct is insufficiently severe or pervasive to state an actionable claim of harassment.
C. Whether There Is a Basis for Employer Liability An actionable claim of harassment also requires the Plaintiff to demonstrate that there is a basis for employer liability. See Mason v. Southern Illinois University at Carbondale, 233 F.3d 1036, 1043 (7th Cir., 2000). Where a plaintiff is harassed by his supervisor, the employer will be strictly liable for the conduct of the supervisor, subject to an affirmative defense. See Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 505 (7th Cir., 2004). However, where the harassment is perpetrated by a co-worker, the employer will be liable only if it was negligent either in discovering or remedying the harassment. See id. at 506. 1. There Is Insufficient Evidence of Supervisor Misconduct Defendant’s liability for the harassing comments made by foreman Jeff Hankins therefore depends upon whether Hankins should be considered a supervisor or co-worker for purposes of Title VII. “Because liability is predicated on misuse of supervisory authority, the touchstone for determining supervisory status is the extent of authority possessed by the purported supervisor.” Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1033 (7th Cir., 1998). A supervisor is someone entrusted with the power to directly affect the terms and conditions of a victim’s
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employment. See Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir., 2002). This authority “primarily consists of the power to hire, fire, demote, promote, transfer or discipline an employee.” Id. Mere authority to oversee aspects of another employee’s job performance is insufficient. See Rhodes, 359 F.3d at 506.
The bulk of foreman Hankins’ job duties consisted of supervising the work of bricklayers and laborers and ensuring the safety of the jobsite. Hankins did not have the authority to hire, fire, demote, promote or transfer employees. Nor does Hankins’ ability merely to recommend discharge transform him into a supervisor, even if his recommendations usually were followed. See Parkins, 163 F.3d at 1035; Bray v. City of Chicago, 2002 WL 31427026, at *6 (N.D.Ill., Oct. 30, 2002). The power to issue disciplinary citations also is insufficient to make Hankins a supervisor for purposes of Title VII liability. Although courts often have identified the “power to . . . discipline an employee” as a mark of supervisory status, such power must be understood in the broader context of “authority to directly affect the terms and conditions of a victim’s employment.” Hall, 276 F.3d at 355. It is important, therefore, to distinguish between individuals who are entrusted with the power to impose tangible disciplinary sanctions against an employee, such as a demotion or suspension without pay, and those individuals who have only the authority to issue citations unaccompanied by any concrete or direct change in the
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terms or conditions of employment. Where the ultimate consequences of disciplinary citations are entrusted to a higher level manager, the authority to issue such citations cannot suffice to establish supervisory status. Accordingly, foreman Hankins cannot be considered a supervisor for purposes of Title VII liability, and the harassment of Alvarado and Posada must be reviewed under the negligence standard for co-worker harassment.
Because Plaintiff presents no evidence that the racist graffiti about which Ortiz and Buenrostro complain was written by Ceisel supervisors, it too will be reviewed under the standard of negligence. Indeed, the possibility that the graffiti was written by non-Ceisel employees or first written at non-Ceisel jobsites stands unrebutted. While Plaintiff’s inability to determine the authorship of the graffiti “poses no obstacle to establishing that this graffiti produced or contributed to a hostile work environment,” Cerros, 398 F.3d at 951, authorship remains important to determining the relevant standard of liability. Absent proof that a supervisor was responsible for the graffiti, the Court cannot find Defendant strictly liable for such harassment, and must instead analyze the employer’s liability under the more lenient standard of negligence.
2. A Reasonable Jury Could Find that Ceisel Was Negligent What an employer knew or should have known is critical to the
analysis of its negligence in discovering or remedying harassment.
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The reasonableness of an employer’s remedial action is measured against the harassment of which it has been apprised. See Fuller v. Caterpillar, Inc., 124 F.Supp.2d 610, 615 (N.D.Ill., 2000). Indeed, without any notice of the harassment, an employer cannot be held liable for its failure to correct or prevent it. See Jarvis v. Sigmatron Intern. Inc., 223 F.Supp.2d 981, 986 (N.D.Ill., 2002). “Generally, the law does not consider an employer to be apprised of the harassment unless the employee makes a concerted effort to inform the employer that a problem exists.” Hrobowski v. Worthington Steel Co., 358 F.3d 473, 478 (7th Cir., 2004). However, where the employer has notice of the harassment by other means, an employee’s failure to report will not relieve the employer of its duty to correct and remedy such harassment. See, e.g., Wilson v. Chrysler Corp., 172 F.3d 500, 509 (7th Cir., 1999).
Defendant had clear and direct notice of the racist graffiti about which class members Ortiz and Buenrostro complain. President Al Ceisel saw such graffiti himself, as did Secretary-Treasurer Bernhardt. Ceisel foremen use the same port-a-potties, and there is evidence that the graffiti was common and pervasive. Yet, Ceisel did not take any action to have the graffiti removed or to find out who was responsible for writing it. Instead, Ceisel contends that it cannot be held liable for the graffiti, because it was the duty of the general contractor, not Ceisel, to provide and clean the port-a-potties at job sites.
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In Williamson v. Denk & Roche Builders, Inc., the Court addressed the precise question of a subcontractor’s liability for racist graffiti in port-a-potties maintained by a general contractor, and it held to the contrary. See Williamson, 2006 WL 1987808, at *2 n.3 (N.D.Ill., July 11, 2006). If an employer is negligent in discovering or remedying workplace harassment, it is irrelevant that the conduct may have been committed by a nonemployee. See Dunn v. Washington County Hosp., 429 F.3d 689, 691 (7th Cir., 2005). Certainly, Defendant’s ability to control the behavior of non-employees will be relevant in determining the reasonableness of its response. See 29 C.F.R. § 1606.8(e). However, Plaintiff points to future occasions on which Ceisel has been successful in asking the general contractor to remove graffiti, and a reasonable jury could find that Defendant’s failure to take any action was an unreasonable response to its clear knowledge of this problem. Accordingly, there is a genuine dispute of material fact about whether Defendant is liable for the harassment suffered by class members Ortiz and Buenrostro, and Defendant’s motion for summary judgment on these claims must be denied.
It is less clear whether Defendant could be found negligent in discovering or remedying the oral harassment about which Alvarado and Posada complain. Plaintiff admits that Alvarado and Posada never reported the alleged harassment. Instead, Plaintiff claims
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that Defendant had notice of the harassment through the filing of Ramirez’s EEOC charge and Defendant’s knowledge of pervasive harassment at construction sites. While Al Ceisel admitted that the construction industry, in general, was known for crude comments, he also stated that he had never heard any derogatory comments by any of his employees, and that no one had ever complained to him about racial harassment. Nor did the evidence regarding Szabo’s misconduct necessarily put Defendant on notice about Alvarado and Posada’s harassment by Hankins. See Fuller, 124 F.Supp.2d at 617 (complaints about the conduct of a different harasser at a different time do not provide notice of the harassment suffered by plaintiff).
Yet, even without clear notice of harassment committed specifically by Hankins, the overall evidence certainly establishes constructive notice of widespread use of racial epithets. Other evidence demonstrates that such racially-based comments were an “ongoing” and “everyday” occurrence, and the EEOC charge by Domingo Ramirez alleges continuing use of racial slurs by “foremen” generally. Under such circumstances, a reasonable jury could conclude that Defendant should have known about, or should have done more to discover, the harassment suffered by Alvarado and Posada. Summary judgment as to these claims must be denied.
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D. Ability to Raise the Faragher/Ellerth Defense Plaintiff EEOC’s motion for partial summary judgment on Ceisel’s affirmative defense under Ellerth presents unique concerns regarding the rules of summary judgment and the Court’s power to decide such a motion. Because the motion seeks to eliminate only certain defensive matter from the case, it never could lead to dispositive judgment on all, or even part of a claim. As such, it is not contemplated by Rule 56(a) or (b), and section (d) was never intended to permit motions for partial summary judgment in their own right. See Krauss v. Keibler-Thompson Corp., 72 F.R.D. 615, 616 (D.Del., 1976); Barry v. Liddle, O’Connor, Finkelstein & Robinson, 1997 WL 736725, at *3-4 (S.D.N.Y., Nov. 25, 1997). Yet, despite such textual uncertainty, Courts in the Northern District of Illinois routinely permit motions for partial summary judgment on affirmative defenses. See Rubin v. Islamic Republic of Iran, 408 F.Supp.2d 549, 552 (N.D.Ill., 2005). Commentators also encourage the allowance of such motions as a means by which to expedite and simplify a case for trial. See 10B Wright, Miller & Kane, Federal Practice and Procedure § 2737 (3d Ed. 1998). However, the particular nature of an affirmative defense under Ellerth convinces the Court that a motion for partial summary judgment as to this defense cannot be permitted. An affirmative defense, of course, ordinarily does not come into operation unless the plaintiff first proves defendant’s
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underlying fault or liability. Here, as with all motions seeking only partial summary judgment on an affirmative defense, Plaintiff makes no claim that Defendant’s liability has been proven by the undisputed evidence. Instead, most courts which permit such motions assume an underlying fault for purposes of the motion, before then construing evidence of the defense in the light most favorable to the defendant. See, e.g., Holden v. Balko, 949 F.Supp. 704, 706 (S.D.Ind., 1996). Such an assumption is troubling. Not only is it at odds with the plaintiff’s substantive burden of proof, but also with the presumption and directive to construe all facts in favor of the non-moving party when deciding a motion for summary judgment. (The Court leaves for another day the jurisdictional complications involved in offering opinions about an affirmative defense which may never prove necessary or relevant).
Perhaps the hypothetical assumption of liability proves to be a harmless (even, efficient) fiction in those cases where the affirmative defense is based on an independent matter, such as a defense of res judicata, immunity, or the statute of limitations. The affirmative defense under Ellerth, however, is deeply tied to the underlying facts establishing liability. Such a defense requires preventive and corrective action which is reasonable in relation to the particular workplace and the harassment which has occurred. See Ellerth, 524 U.S. at 765 (Discussing the “need for
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a stated policy suitable to the employment circumstances”). See also Cerros, 398 F.3d at 953 (“An employer’s response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made”) (emphasis added); Baskerville v. Culligan Intern. Co., 50 F.3d 428, 432 (7th Cir., 1995) (“What is reasonable depends on the gravity of the harassment”). Assumptions about the facts of liability therefore pose a particular danger in the context of an affirmative defense under Ellerth. Permitting a motion for partial summary judgment in such a situation would be unworkable and inappropriate.
Any assumption the Court was to make about the underlying facts establishing liability would necessarily affect the determination of whether Defendant’s response was reasonable. Disputes about any of the facts underlying the prima facie case of harassment will change the type, scope, and force of response necessary to satisfy the affirmative defense. For example, disputes about which employees qualify as supervisors will significantly expand or contract the harassment for which an employer is strictly liable and for which it must demonstrate affirmative efforts to prevent or correct. The level of necessary employer action also will vary with the severity or pervasiveness of the harassing behavior. Simply put, outrageous and ongoing harassment by a broad number of supervisors will require a much
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different and much more forceful response than more benign and

isolated instances of harassment by only one supervisor. Until the

underlying facts of harassment are established, it would be both

difficult and unfair to assess the reasonableness of an employer’s

response. This is especially true in a case where the EEOC sues on

behalf of a class of employees, and the Court must examine the

claims of multiple individuals, each of whom has experienced

different instances of harassment at the hands of different co-

workers or supervisors.

It would be a different situation, of course, were Plaintiff

able to identify undisputed facts establishing harassment. The

Court then could assess the reasonableness of an employer’s

response, and Plaintiff would be free to move for summary judgment

on the entirety of its harassment claim. (It is this development

of the underlying facts of harassment at trial that distinguishes

Plaintiff’s citation to Faragher and to Molar v. Booth, 229 F.3d

593 (7th Cir., 2000)). However, absent established facts of the

underlying harassment, it would be both unfair and inappropriate

for the Court to pass judgment on an employer’s affirmative defense

under Ellerth.

Because of the standard of comparative

reasonableness at issue, Plaintiff’s motion for partial summary

judgment poses problems not present in the motions previously

permitted in this District, and it cannot be allowed.

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Plaintiff cites no case from the Northern District of Illinois in which a court has extended the use of partial summary judgment to an affirmative defense under Ellerth. Nor are the cases cited from other jurisdictions persuasive. None of those cases contain any discussion about the propriety of a motion for partial summary judgment on an affirmative defense. Nor do they grapple with the dangers and difficulties identified in this opinion. Indeed, the majority of the cases cited struck the Ellerth defense because of its simple inapplicability, not because of any judgment about the reasonableness or sufficiency of an employer’s actions to prevent or correct harassment. See E.E.O.C. v. Geoscience Engineering & Testing, Inc., 2007 WL 951632, at *2 (S.D.Tex., Mar. 28, 2007) (defense unavailable where harassment committed by employer’s alter ego or proxy); Lissick v. Merrill Corp., 2003 WL 22213114, at *6 (D.Minn., Sept. 23, 2003) (defense inapplicable to claims of coworker harassment); Begley v. Davis County Hospital, 2002 WL 824777, at *7 (S.D.Iowa, Apr. 4, 2002) (defense unavailable where employee claims supervisor’s harassment resulted in a tangible employment action).
Plaintiff identifies only one case which actually passed substantive judgment on the reasonableness of an employer’s response. See E.E.O.C. v. Video Only, Inc., 2008 WL 2433841 (D.Or., June 11, 2008). To the extent the decision in Video Only was motivated by the delay in corrective action, and not
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necessarily its sufficiency, it is distinguishable from the judgment the EEOC asks the Court to make in this case. To the extent the court in Video Only also passed judgment on the substantive reasonableness of the employer’s response, it did so based on generalized notions of what ordinarily is required, not by comparing the actual facts of harassment to the response reasonably necessary to prevent and correct it. Controlling case law prohibits this Court from engaging in such generalized judgments, and mandates that the Court instead engage in an individualized assessment of an employer’s response in light of the particular facts of harassment. See, e.g., Cerros, 398 F.3d at 953. Such an assessment cannot be made where Plaintiff moves for partial summary judgment only on the affirmative defense.
III. CONCLUSION For the reasons stated above, the Court cannot entertain Plaintiff’s Motion for Partial Summary Judgment on the Affirmative Defense under Ellerth. Disputed facts about the harassment suffered by Plaintiff class members and Defendant’s liability therefor also prevent the Court from granting Defendant’s Motion for Partial Summary Judgment. Both Motions are denied. IT IS SO ORDERED.

DATE: 1/23/2009

Harry D. Leinenweber, Judge United States District Court
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 Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 1 of 21 PageID #:1810

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
and DOMINGO RAMIREZ, CUAUHTEMOC GUERRERO,
Plaintiffs,
v.
CEISEL MASONRY, INC., an Illinois corporation,
Defendant.

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) Civil Acti No.; 06 CV 2075

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0Cocu~075

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) Judge Hal1)' D. Leinenweber

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DOMINGO RAMIREZ, CUAUHTEMOC GUERRERO, and JUAN CALDERON,
Plaintiffs,
v.
CEISEL MASONRY, INC., an Illinois corporation,
Defendant.

)

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)

Civil Action No.: 06 CV 2084

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)

) )

Judge Hal1)' D. Leinenweber

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)

)

CONSENT DECREE THE LITIGATIQN
I. On April 13, 2006, Plaintiff Equal Employment Opportunity Commission (the "EEOC") filed suit against Defendant Ceisel Masonry, Inc. ("Ceisel") under Title VII of the Civil Rights Act of 1964 (the "Title VII"), 42 U.S.C. §2000e, et seq. ("Title VII case"). The
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EEOC alleged that Ceisel violated Title VII by fostering a hostile work environment based upon national origin constituting unlawful discrimination against its Hispanic employees. EEOC's suit sought relief for Charging Parties Domingo Ramirez, Cuauhtemoc Guerrero, and Francisco Algarin ("Charging Parties"), and a class of Hispanic employees who were adversely affected by such practices ("class members"). Domingo Ramirez and Cuauhtemoc Guerrero intervened individually in the EEOC's action, alleging that Ceisel fostered a hostile environment of national origin harassment against Hispanic workers and that Ceisel unlawfully retaliated against Ramirez for opposing the discrimination.
2. Domingo Ramirez, Cuauhtemoc Guerrero, and Juan Calderon (hereafter "Named Plaintiffs") filed a separate complaint, which was subsequently amended, alleging that Ceisel violated Section 1981,42 U.S.C. §1981. ("§1981 case") In this action, Named Plaintiffs alleged that Ceisel unlawfully discriminated against them by fostering a hostile work environment based upon race and national origin and unlawfully retaliated against Ramirez for ppposing the discrimination. The §1981 and Title VII case were consolidated before the Court for purposes of discovery and trial.
3. In the interest of resolving this matter, and as a result of having engaged in comprehensive settlement negotiations, the parties have agreed that this action should be finally resolved by entry ofthis Consent Decree (hereafter "Decree").
4. This Decree fully and finally resolves any and all issues and claims arising out of the Complaint filed by the EEOC and the Amended Complaint filed by the Named Plaintiffs, individually and on behalf ofthe participating class members.
FINDINGS 5. Having carefully examined the terms and provisions of this Decree, and based on
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the pleadings, record, and stipulations of the parties, the Court finds the following: a. This Court has jurisdiction of the subject matter ofthis action and of the

parties.

b. The terms of this Decree are adequate, fair, reasonable, equitable, and just.

The rights of the EEOC, Ceisel, the Named Plaintiffs, class members, and the public interest are

adequately protected by this Decree. c. This Decree conforms to the Federal Rules of Civil Procedure and to Title

VII, §1981, and is not in derogation of the rights or privileges of any person. The entry of this Decree will further the objectives of Title VII and §1981 and will be in the best interests of

EEOC, Ceisel, the Named Plaintiffs, class members, and the public interest.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:

INJUNCTION AGAINST NATIONAL ORIGIN DISCRIMINATION 6. Ceisel and its officers, agents, management (including supervisory employees), successors and assigns, and all those in active concert or participation with them, or any of them, are hereby enjoined from discriminating against employees of Ceisel, or employees of any joint venture project in which Ceisel is involved, on the basis of their race or national origin.

INJUNCTION AGAINST RETALIATION

7. Ceisel, its officers, agents, employees, successors, assigns and all persons acting in concert with it shall not engage in aoy form of retaliatioo against any person because such person has opposed any practice made unlawful under the Title Vll or Section 1981, filed a Charge of Discrimination under the Title VII, testified or participated in any manner in any

investigation, proceeding, or hearing under the Title VII or Section 1981, or asserted any rights

under this Decree.

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MONETARY RELIEF 8. Ceisel shall pay the Class Members the gross total sum of five hundred thousand dollars ($500,000) as damages to be distributed in accordance with the terms of this Decree.
MONETARY RELIEF FOR NAMED PLAINTIFFS 9. For resolution of their claims, Ceisel shall provide Domingo Ramirez $70,000, Cuahtemoc Guerrero $80,000, and Juan Calderon $70,000, with payments to be made on the following schedule; Cuahtemoc Guerrero: Initial Payment; $27,200 Payment to be made by November 2, 2009: $24,000 Payment to be made by May 3, 2010: $28,800 Domingo Ramirez: Initial Payment: $23,800 Payment to be made by November 2, 2009: $21,000 Payment to be made by May 3, 20 I0; $25,200 Juan Calderon: Initial Payment; $23,800 Payment to be made by November 2, 2009: $21,000 Payment to be made by May 3, 20 10; $25,200
for each Named Plaintiff, no later than ten (10) business days after the approval and entry of this Decree and receipt by Ceisel of a copy of the Release Agreement, attached as Exhibit A, executed by Named Plaintiff (in the form agreed by Ceisel and Named .Plaintiffs' counsel), whichever is later, Ceisel shall issue and mail to Counsel for the Named Plaintiffs, by certified mail, a check for damages, in the amount specified above in this paragraph for the initial scheduled payment. Contemporaneously, Ceisel shall submit copies of all payment checks to the EEOC. Each payment shall be reported on IRS Form 1099, a copy of which shall be furnished to
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the appropriate named Plaintiff. Ceisel shall make no deductions from the Payments. MONETARY RELIEF FOR EEOC CLASS MEMBERS
10. Subject to the terms and conditions of this Decree, Ceisel shall make payments
("Payment(s)") to the individuals for whom the EEOC has sought relief ("Class Members") in
the following amounts, by the following dates:
Francisco Algarin: Initial Payment: $18,700 Payment to be made by November 2, 2009: $16,500 Payment to be made by May 3, 20 I0: $19,800
Jose Alvarado: Initial Payment: $5,100 Payment to· be made by November 2, 2009: $4,500 Payment to be made by May 3, 20 I 0: $5,400 Alejandro Buenrostro:
Initial Payment: $3,400 Payment to be made by November 2, 2009: $3,000 Payment to be made by May 3, 2010: $3,600
lsias Guerrero. Jr. : Initial Payment: $5,100 Payment to be made by November 2, 2009: $4,500 Payment to be made by May 3, 2010: $5,400
German Ortiz: Initial Payment: $5,100 Payment to be made by November 2, 2009: $4,500 Payment to be made by May 3, 2010: $5,400
Adrian Posada: Initial Payment: $5, I 00 Payment to be made by November 2, 2009: $4,500 Payment to be made by May 3, 2010: $5,400
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Joey Torres: Initial Payment: $5, I 00 Payment to be made by November 2, 2009: $4,500 Payment to be made by May 3, 2010: $5,400 Each Payment shall be reported on IRS Form 1099, a copy of which shall be furnished to the appropriate Class Member. Ceisel shall make no deductions from the Payments. II. For each Class Member named in Paragraph I0, no later than ten (I 0) business days after the approval and entry of this Decree and receipt by Ceisel of a copy of the Release Agreement executed by that Class Member (in the form set forth in Exhibit 8 to this Decree), whichever is later, Ceisel shall issue and mail to that Class Member, by certified mail, a check for damages, in the amounts specified in Paragraph I 0 for the initial scheduled payment. Contemporaneously, Ceisel shall submit copies of all payment checks to the EEOC. The EEOC shall provide Ceisel with current mailing addresses for Class Members who are no longer employed by Ceisel.
ATTORNEYS' FEES AND COSTS 12. Ceisel agrees to pay Named Plaintiffs' counsel $140,000 in attorney's fees and costs on the following schedule: initial payment: $47,600; payment to be made by November 2, 2009: $42,000; payment to be made by May 3, 2010: $50,400.
PERSONAL GUARANTEE 13. Payment of all amounts to be paid or caused to be paid under this Consent Decree by Ceiscl is personally guaranteed ·by Adalbert Ceisel, Jr. in his personal and individual capacity, in accordance with the Personal Guarantee of Payment attached to this Consent Decree as Exhibit D and incorporated herein by reference. The Federal District Court for the District of Northern District of Illinois, Eastern Division, to which the Lawsuit is assigned, retains
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jurisdiction to enforce any liability, obligation or duty guaranteed by this Personal Guarantee without the necessity ofjoining Ceisel Masonry, Inc. or any other person or entity in such lawsuit.
ANTI-HARASSMENT AND ANTI-DISCRIMINATION POLICY 14. Ceisel shall affinn and maintain a policy against race and national origin discrimination and harassment for the duration of this Decree. Commencing no later than sixty (60) calendar days after the approval and entry of this Consent Decree, Ceisel shall distribute or otherwise make available a copy of said policy to each employee ofCeisel. The policy, at minimum, shall: (a) Specifically prohibit all discrimination and harassment against employees on the basis ofrace or national origin. (b) Infonn employees that they may raise complaints with management members located on site, as well as with a designated contact person, and the company will investigate all complaints. (c) Infonn employees that complaints of discrimination will be investigated thoroughly and promptly and shall provide that employees, including management employees who violate the policy, are subject to discipline up to and including discharge. (d) Require the designation of a person with responsibility for promptly investigating complaints of discrimination and harassment and for implementing the tenns of this Consent Decree. (c) Affirmatively state that employees will not be subject to retaliation if they bring a good faith complaint or participate in an investigation. The policy will not suggest or state that only workers who make "rightful complaints" are protected from retaliation.
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(f) Require that all supervisors and managers be evaluated, among other criteria, based upon their compliance with Ceisel's anti-harassment and anti-discrimination policies.
(g) Be available in both English and Spanish and posted in both English and Spanish at every jobsite.
(h) Require that foremen and other managers that observe harassing behavior or become aware of a harassment complaint have a duty to report such observations or complaints to upper management; and
(i) Be provided to all employees at least once a year. 15. Ceisel shall develop and maintain a policy regarding internal investigation of all complaints concerning alleged race or national origin harassment, retaliation and/or race or national origin discrimination. Ceisel's policy, at a minimum shall require that: a) Ceisel make all reasonable efforts to fully investigate all complaints of harassment, retaliation, and/or discrimination within seven (7) days of the date the allegation is brought to the attention of the company b) all interviews be conducted in person; c) all material witnesses be interviewed; d) the company photograph and preserve all evidence in a manner that will facilitate further forensic investigation; (e) all complaining parties and witnesses will be assured that they will not be retaliated against; f) Ceisel prepare written findings of the results of each investigation; and g) the findings be communicated to the alleged victim of discrimination RACE/NAIIONAk ORIGIN HARASSMENT I DISCRIMINATION TRAINING
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16. Within ninety (90) days following the approval and entry of this Decree, and again within ninety (90) days prior to the date twelve (12) months, twenty-four (24), and thirtysix (36) months following the entry ofthis Decree, all ofCeisel's employees shall participate in a training session or sessions by a trainer paid for by Ceisel and approved by the EEOC and counsel for the Named Plaintiffs (hereafter collectively referred to as "Named Plaintiffs' Counsel") regarding racial and national origin discrimination and the duty to protect employees from unwelcome harassment. Any new employee at these facilities shall receive such training at or prior to starting work with Ceisel. A registry of attendance shall be maintained.
17. Ceisel shall obtain the EEOC's and Named Plaintiffs' Counsel's approval of its proposed trainer prior to the commencement of the training session(s). Ceisel shall submit the name, address, telephone number, resume and training proposal of the proposed trainer to the EEOC and Named Plaintiffs' Counsel at least fifteen (15) business days prior to the proposed commencement date(s) of the training(s). The EEOC and Named Plaintiffs' Counsel shall have ten (I 0) business days from the date of receipt of the information described above to accept or reject the proposed trainer. In the event the EEOC and Named Plaintiffs' Counsel do not approve Ceisel's designated trainer, Ceisel shall have ten (10) business days to identifY an alternate trainer. The EEOC and Named Plaintiffs' Counsel shall have ten (10) business days from the date of receipt of the information described above to accept or reject the alternate trainer. If the parties cannot through this process agree on a trainer, then they may seek the Court's assistance under Paragraph 31.
18. Ceisel shall certify to the EEOC and Named Plaintiffs' Counsel in writing within five (5) business days after the ninetieth (901h) day following the entry of this Decree and again after twelve (12) months, twenty-four (24), and thirty-six (36) months following the entry of this
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Decree that group training has taken place and that the required personnel have attended. Such certification(s) shall include: (i) the date, location and duration ofthe training; and (ii) a copy of the registry of attendance, which shall include the name and position of each person in attendance. Prior to each anniversary date following the entry of this Consent Decree, Ceisel shall certify in writing to the EEOC and Named Plaintiffs' Counsel that the required training of all new employees has been provided prior to or at the time they started their employment.
19. Upon the EEOC's or Named Plaintiffs' Counsel's request, Ceisel agrees to provide it with copies of any and all pamphlets, brochures, outlines or other written material(s) provided to the participants of the training session(s).
SUPERVISOR ACCOUNTABILITY
20. Ceisel agrees that it shall impose discipline up to and including suspension,
demotion and tennination upon any foremen or manager, who: (i) engages in race or national origin harassment or discrimination; (ii) knowingly tolerates any such conduct in his or her presence or among persons under his or her supervision; (iii) fails to report allegations of race or national origin harassment or discrimination to the appropriate Ceisel personnel; or (iv) who retaliates against any person who complains or participates in any investigation or proceeding concerning any such conduct. Ceisel shall communicate this policy to all agents, supervisors and managers.
POSTING OF NOTICE 21 Within ten (10) business days after approval and entry of this Decree, Ccisel shall post same size copies of the Notice attached as Exhibit C to this Decree at all its facilities and job sites, including, but not limited to the tool box on the job site. The Notice shall remain posted for three (3) years from the date of entry of this Decree. Ceisel shall take all reasonable steps to
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ensure that the posting is not altered, defaced or covered by any other material. Ceisel shall certify to the EEOC and Named Plaintiffs' Counsel in writing within ten (10) business days after entry of the Decree that the Notice has been properly posted. Ceisel shall permit a representative of the EEOC to enter Ceisel's premises for purposes of verifying compliance with this Paragraph at any time during normal business hours.
RECORD KEEPING 22. During the period in which this Decree is effective, Ceisel shall maintain records of each complaint of race or national origin discrimination, race or national origin harassment, or retaliation. For each complaint or report of race or national origin discrimination, race or national origin harassment, or retaliation, the above-noted records shall include: (i) the name of the complaining or reporting person (including social security number, address, and telephone number); (ii) the date of the complaint or report; (iii) a written description of what was alleged in the complaint or report; (iv) the names of any witnesses; (v) a written description of the resolution or outcome of the complaint or report, including a description of what actions, if any, Ceisel took; and (vi) if the complaint or report was made in written form, a copy thereof. 23. Ceisel shall make all documents or records referred to in Paragraph 22 above, available for inspection and copying within ten (1 0) business days after the EEOC's or Named Plaintiffs' Counsel so requests at the EEOC's Chicago District Office, or at another mutually agreed upon location. In addition, Ceisel shall require personnel within its employ whom the EEOC or Plaintiffs' Counsel's requests for purposes of verifying compliance with this Decree to cooperate reasonably with the EEOC and Named Plaintiffs' Counsel and to be interviewed.
REPORTING 24. Ceisel shall furnish to the EEOC and Named Plaintiffs' Counsel the following
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written reports semi·annually for a period of three (3) years following the approval and entry of this Consent Decree. The first report shall be due six (6) months after entry of the Consent Decree. The final report shall be due 35 months after entry ofthe Decree. Each such report shall contain (as applicable):
(a) A summary all complaints of race or national origin discrimination or retaliation received during the six (6) month period preceding the report, including the date the complaint was made, who made it, what was alleged, and what actions Ceisel took to resolve the matter.
(b) A certification by Ceisel that the Notice required to be posted in Paragraph 20, above, remained posted during the entire six (6) month period preceding the report.
MISCELLANEOUS PROVISIONS 25. This Consent Decree may be executed by the Parties in one or more counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 26. The terms of this Consent Decree shall be binding upon the present and future directors, officers, managers, agents, successors and assigns of Defendant. Defendant, and any successor(s) of Defendant, shall provide a copy of this Decree to any organization or person who proposes to acquire or merge with Defendant, or any successor of Defendant, prior to the effectiveness of any such acquisition or merger. Ceisel and Ceisel's owner(s) shall comply with all injunctive provisions of this decree and shall cause all joint venture projects in which Defendant (or any successor to Defendant or other entity created by Ceisel's owner(s) to engage in masonry contracting) participates to comply with all injunctive provisions of this Decree. Defendant agrees to notifY and to provide a copy of this Decree to any organization(s) or person(s) with whom Defendant enters into a joint venture agreement prior to the execution of
12

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 13 of 21 PageID #:1822
that agreement. If any joint venture to which Defendant (or any successor to Defendant or other
entity created by Ceisel's owner(s) to engage in masonry contracting) participates fails to comply
with the injunctive provisions of this Decree, Defendant shall he held fully accountable. This
paragraph shall not be deemed to limit any remedies available in the event of any finding by the
Court regarding a violation of this Decree.
27. The service of any notices, reports, or certificates to be given to the parties under
this Consent Decree will be deemed sufficient, and effective upon mailing, if sent by first-class
mail to:
Counsel for Named Plaintiffs: Laurie Wardell Matthew J. Ginsburg Chicago Lawyers Committee for Civil Rights Under Law 100 N. LaSalle St. Suite 600 Chicago II 60602 (312) 630-9744
Counsel for the EEOC: Richard J. Mrizek Trial Attorney U.S. Equal Employment Opportunity Commission 500 W. Madison, Suite 2000 Chicago, Illinois 60661 312-886-9078
Counsel for Defendant Julie A. Bruch O'Halloran, Kosoff, Geitner, & Cook, P.C. 650 Dundee Road Fourth Floor Northbrook, lllinois 60062 847-291-0200
28. This Consent Decree constitutes the entire agreement between the parties hereto
with respect to the matters herein, and it supersedes all negotiations, representations, comments,
13

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 14 of 21 PageID #:1823
contracts and writings prior to the date of this Consent Decree. 29. Whenever possible, each provision and term of this Consent Decree shall be
interpreted in such a manner as to be valid and enforceable; provided, however, that in the event any provision or term of this Consent Decree should be determined to be or rendered invalid or unenforceable (by an Act of Congress or otherwise), all other provisions and terms of this Consent Decree and the application thereof to all persons and circumstances subject thereto shall remain unaffected to the extent permitted by law.
30. Ceisel, EEOC, and Counsel for the Named Plaintiffs may jointly agree to modify the Consent Decree with the approval of the Court.
DISPUTE RESOLUTION 31. If during the term of this Decree any party to this Decree believes that the other party has failed to comply with any provision(s) of the Decree, the complaining party shall notify the other parties of the alleged non-compliance and shall afford the alleged non-complying party ten (I 0) business days to remedy the non-compliance or to satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within ten (I 0) business days, the complaining party may apply to the Court for appropriate relief.
DURATION OF THE DECREE AND RETENTION OF JURISDICTION 32. All provisions of this Decree shall be in effect (and the Court will retain jurisdiction of this matter to enforce this Decree) for a period of three (3) years immediately following the approval and entry of the Decree, provided, however, that if, at the end of the three (3) year period, any disputes under Paragraph 30, above, remain unresolved, the term of the Decree shall be automatically extended (and the Court will retain jurisdiction of this matter to
14

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 15 of 21 PageID #:1824

B61B1/2Be9 1~:12 9472916648

PAE£ 18/:<'3

enforce the Decree) until 8IIOh time as an I1ICh dtsputaa havo baon reaolved.

ENTERED AM)~ FOR:

l'ot the BQUAL BMPI..OYMHNI'
OPPORTUNITY COMMISSION 1801 L Stroot, N.W.
WashJn&ton, D.C. 20507

11« CEISBL MASONRY, INC.

Adalbert ('.cfnl. Jr.
(in his pononal.nd • vidual ""''lic~ wffll !espeCt11J Paragraph 13 wllWiibit C)

U.S. Equal Employment
Opponunity Cotnn!l..ton SOO W. Madl$011, SUite 2000
Cltica&o, IUlnob ~1
(312) 1,18,.9078

15

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 16 of 21 PageID #:1825

enforce the Decree) until such time as all such disputes have been resolved.

ENTERED AND APPROVED FOR:

For the EQUAL EMPLOYMENT OPPORTIJNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507

For CEISEL MASONRY, INC.

JAMES LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel

Adalbert Ceisel, Jr. President

JOHN C. HENDRICKSON Regional Attorney

Adalbert Ceisel, Jr. (in his personal and individual capacity with
respect to Paragraph 13 and Exhibit C) •

GREGORY GOCHANOUR Supervisory Trial Attorney

RICHARD J. MRIZEK Trial Attorney
U.S. Equal Employment Opportunity Commission 500 W. Madison, Suite 2000 Chicago, Illinois 60661 (312) 8119"9078

For Domingo Ramirez, Cuauhtemoc Guerrero, and Juan Calderon 15

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 17 of 21 PageID #:1826
LAURIE WARDELL MATTHEW J. GINSBURG Chicago Lawyers Committee for Civil Rights I 00 N. LaSalle St. Suite 600 Chicago II 60602 (312) 630-9744
TODD L. MCLAWHORN ABIGAIL L. PELUSO
Howrey LLP 321 North Clark St., Suite 3400 Chicago, IL 60610 Phone: 312-595-1138
Fax: 312-264-0363 /
/
/
.;;.,;.,___~-----
udge Harry D. Leinenweber United States District Court
16

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 18 of 21 PageID #:1827

EXHIBITB

I,

, for and in consideration of the sum of$

payable to me

pursuant to the terms ofthe Consent Decree entered by the Court in EEOC v. Ceisel Masonry,

No. 06 C 2075 (N.D. IL), I waive my right to recover for any claims of employment

discrimination arising under Title VII of the Civil Rights Act of 1964 that I had against Ceisel

Masonry, on or before the date of this release and that were included in the claims in the EEOC's

complaint or which could have been asserted in EEOC v. Ceisel Masonry. No. 06 C 2075 (N.D.

IL).

Date

Signature

17

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 19 of 21 PageID #:1828
EXHIBITC NOTICE TO CEISEL EMPLOYEES This Notice is being posted pursuant to a Consent Decree entered by the federal court in the Northern District of Illinois in EEOC v. Ceisel Masonry, No. 06 C 2075 (N.D. IL), and Ramirez et al.v. Ceisel Masonry, No. 06 C 2084 (N.D. Ill.), resolving litigation filed by the Equal Employment Opportunity Commission ("EEOC") and by Ceisel employees against Ceiscl. In the suit, the EEOC and named Plaintiffs alleged that Ceisel discriminated against Hispanic-American employees on the basis of their race and national origin by subjecting them to a hostile work environment and one employee to wrongful termination for complaining of the discrimination. To resolve the case, Ceisel, the EEOC, and the named Plaintiffs have entered into a Consent Decree which provides, among other things, that: I) Ceisel will make monetary payments totaling $500,000 to individuals who were subjected to unlawful discrimination on the basis of their race or national origin. 2} Ceisel will not discriminate against any employee on the basis of race or national origin. 3} Ceisel will not retaliate against any person because (s}he opposed any practice made unlawful by the Title VTI, filed a charge of discrimination, participated in any Title VII proceeding, or asserted any rights under the Consent Decree; 4) Ceisel will maintain and distribute to all employees a policy against race and national origin discrimination and will train all its employees regarding laws prohibiting discrimination and harassment based upon race or national origin; and 5) Ceisel will report all complaints of race and national origin discrimination to the EEOC. The EEOC enforces the federal laws against discrimination i0 em.plo men! on the basis ofrace, color, religion, national origin, sex, age or disability. Ifymi believ you have been
discriminated against, you may contact the EEOC at (312) 353-8195. Th EOC charges no
fees and has employees that speak Spanish and other languages other th English. Y NE
18

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 20 of 21 PageID #:1829

AVISO A TODOS LOS EMPLEADOS DE CEISEL

Este Aviso se esta fijando conforme a un Decreta de Consentimiento aprobado en Ia corte federal
en EEOC v. Ceisel Masonry, No. 06 C 2075 (N.D. IL), y Ramirez et al.v. Ceisel Masonry, No.
06 C 2084 (N.D. Ill.), No. 99 C 8270 (N.D. Ill.), resolvicndo una demanda porIa Comisi6n de lgualdad de Oportunidades en el Empleo ("EEOC") y emplcados de Ceisel contra de Ceisel Masonry.

En su demanda, el EEOC y los empelados de Ceisel alegan que Ceisel discrimino contra a los empleados hispanos por raz6n de raza y origen nacional por foment6 y toler6 un entorno de trabajo que era hostil y por terminaci6n ilegal de un empleado que quedarse de discriminaci6n.

Para resolver este caso, Ceisel y el EEOC han entrada en un Decreto de Consentimiento (acuerdo legal) el cual provee, entre otras casas, que:

I) Ceisel pagant una compensaci6n monetaria ($500,000) a ciertos empleados que eran victimas discriminaci6n ilegal de raza o origen nacional;

2) Ceisel no fomentan\ o tolerant hostigamiento por raza o origen nacional o discriminar de otra manera en contra de ningun empleado por su raza o origen nacional;

3) Ceisel no tamara represalia en contra de ninguna persona por que esa persona se oponga a alguna pnictica que sea ilegal bajo el Titulo VII, que halla radicado una querella de discriminaci6n bajo el Titulo VII, participado en cualquier procedimiento bajo el Titulo VII, o haya afirmado sus derechos bajo el Decreta de Consentimiento;

4)

Ceisel adoptara y distribuira a todos los empleados una polltica que prohibe

discriminaci6n por raza o origen nacional y entrenan\ a todos de sus empleados sabre las

!eyes que prohibida discriminaci6n y hostigamiento por raza y origen nacional.

5) Ceisel comunicara todos quedas de discriminaci6n de raza u origen nacional al EEOC.

El EEOC hace cumplir las leyes federates en contra de Ia discriminaci6n en empleo por raz6n

de rat.a, color, religi6n, origen nacional, sexo, edad o incapacidad. Si usted cr~que h sido discriminado puede contactar al EEOC al (312) 353-8195. El EEOC no cobra ningun ~Piiorario y ene empleados que

hablan espaflol y otros idiomas aparte de ingles.

/

ESTE ES UN

Este aviso debe de pcrmaneccr fijado por tres all.os partir de I echa abajo indicada y no

debera de ser alterado, mutilado, removido, o cu. l?Jtrto por n!Jtk.lin otro material. Cualquier

preguota sobre este aviso o su cnmpllmiento delle de ser dp(gida a Ceisel Settlement,

.

EEOC, SOO West Madison Street, Suite 2000, qhitago, 60661.

f{fft

i " rryD.L,;,_,_

nited States District Court

19

Case: 1:06-cv-02075 Document #: 95 Filed: 05/22/09 Page 21 of 21 PageID #:1830
66/81/2089 15:12 9472916648

RRSONAL GUARAJIIT!tE
The ~ Acfalbart Celnl, lr.(tlw "'uanntof'), 11n IndividuAl Rnd a acmtn>Uiaa lihaboldef of Cdlel MJsmary Cotp., a corpor.Jion lllpllked under lito llws of 11tt1 State Qf Illinois, in corllldentlon of the 11811:111111GI1t of tho gjlims all9d by tho Bqua1 Bmployment Opportwmy Commlalon or111e tl'nltcd 11tatee (tb.o "'!BOC"), inohldlng dd!n'ed Jlii.Ylllllllt oflbo uttlomeut IIIIIOUI1t over time, In the llllbr of BPPC y. C..lpl M•'!!Pry. No. O<i C 2b7:1 (N.D. ll.). tmd lkmjm pt aJ.y, Ctfeof Me"'P"$ No. 06 C ZOB4 (N.D. Ill), (tiRI ._Wllllit'') 1111d * t
flOOd and 'lllllaablo oonskknlton, cm. noco:ipt 111111 111trlcleaey of wbld! ..., lweby IICicnowlcdgtd,
does per8011111y hereby I.IIICOildllillllllb' ~ ~ nf -"011.000 bl mone~ary relief; '" ddail~ In~ 8-l2 ofthe COIIIelll Decree allfmd.lnw 1111 part <lfth~ Lawsuit, a copy of wbioh l• llltaolvld hereto and made a part hm>af(tho "Con8Cllt ~").
It 1111 reco~ and.llp'CC(I 1hat fhili Pcnonal Oulllllllee.by C3uuan!Qf \$ a sulmmtlal part
of 11M 100<111"-Uon ~r tho olpll... of tho eon.....t o - b,y lh11 lreQC and Nlllltld Plalllllm
and tllat \be BBOC and Named PlaiDtlft'e WOilldnot ape to 1111)' dcfi:tred peyment "1llld1lr ihc
Consent Doctw witiH)ut th~ aareement nf(llj......mrto .,._,., thilo ~ a....- .
Oullrllllw alio agre"" tbllt the BBOC Ia not fll'lll rcqulnxl 1:9 mftme qalDat Ceiael Masonry, IDe., or lilY ot1uor pmon or entity 11111 liablliQ', obllptioD or duty ~ by thle
Pmonal Ouarturtee blltbre lllllklns ~~ thnof IIPinat au.n.ntor; Guarantor
o.ola><>wleclpolM!: thlo Is a O.......tvo ofP~ aod•wl• Outlnmoe ofQ)llectlon,
The pardce hereto acknowlfldae tllat lhe fllderal Dlllrict Caart fi>r tho Dillriot ofNo<thtlm Dillricn of UllDol., Balltcm Division, to whioh the Lawsuit Ia ~~Mtanod te1aln1 jurildictlon to
enibNe lillY 1~, obliption or dlltf guuanb:lod by thlt Pmonal 0ooutee without tho
-flty ofjollllng Ceiael M110111y, lao. or lillY other pmon or~ in IIIIOb lawsuit.
EXECUTED wbe efftlctivo u ofthl•..::!:/.-d8.Y or....Ltti~A.:..;.Lt_' _ ____,, 2009.
GVAMNTOR:
~ Name: 4~ ()~ - ~ w c;;,:s&-L_

ADDR.BSs: ..33o NGZ-Vtll/ ~
Not.z.y.lflt::=totZ- / t... (.

6 o o 6 Z.

PRONB NtlMSER: tf5f 7~ 2. 72..- 6 2,.$ 0
SOCIAL SBCURITY NUMaBR: 3 :S 6 -~6 -//I'/

20

 
 Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 1 of 9
MASON
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:06−cv−02075

Equal Employment Opportunity Commission v. Ceisel Masonry, Date Filed: 04/13/2006

Inc.

Date Terminated: 05/22/2009

Assigned to: Honorable Harry D. Leinenweber

Jury Demand: Plaintiff

Cause: 42:2003 Job Discrimination

Nature of Suit: 442 Civil Rights: Jobs

Jurisdiction: U.S. Government Plaintiff

Plaintiff

Equal Employment Opportunity Commission

represented by Richard John Mrizek U.S. Equal Employment Opportunity Commission 500 W. Madison Suite 2000 Chicago, IL 60661 (312) 869−8117 Fax: (312) 869−8124 Email: richard.mrizek@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M. Gochanour United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 886−9124 Email: gregory.gochanour@eeoc.gov ATTORNEY TO BE NOTICED

John C. Hendrickson Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8099 Fax: (312) 869−8124 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Ceisel Masonry, Inc.

represented by Julie Ann Hofherr Bruch O'Halloran, Kosoff, Helander & Geitner, P.C. 650 Dundee Road Suite 475 Northbrook, IL 60062 (708) 291−0200 Email: jbruch@okgc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allison Victoria Smith Brenner, Ford, Monroe & Scott, Ltd. 33 North Dearborn

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 2 of 9

#300 Chicago, IL 60602 (312) 781−1970 Email: asmith@brennerlawfirm.com ATTORNEY TO BE NOTICED

Jane Marie May O'Halloran Kosoff Geitner & Cook, LLC 650 Dundee Road Suite 475 Northbrook, IL 60062 (847) 291−0200 Email: jmay@okgc.com ATTORNEY TO BE NOTICED

Jeffrey Ray Rosenberg O'Halloran, Kosoff, Geitner & Cook, PC 650 Dundee Road Suite 475 Northbrook, IL 60062 (847) 291−0200 Email: jrosenberg@okgc.com ATTORNEY TO BE NOTICED

Saira Janine Alikhan 3516 W. Fullerton Avenue Apt. 1 Chicago, IL 60603 (312) 371−4993 Email: saira1214@gmail.com TERMINATED: 07/16/2008

Intervenor Plaintiff Domingo Ramierez

represented by Todd Lawrence McLawhorn McLawhorn Law Offices, P.C. 1 S. Dearborn, Suite 2100 Chicago, IL 60603 United Sta (312) 419−1941 Email: todd@mcllegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth Michael Kliebard Morgan Lewis & Bockius LLP 77 West Wacker Drive Chicago, IL 60601−5094 312−324−1000 Fax: 312−324−1460 Email: kenneth.kliebard@morganlewis.com ATTORNEY TO BE NOTICED

Intervenor Plaintiff Cuauhtemoc Guerrero

represented by Todd Lawrence McLawhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth Michael Kliebard (See above for address) ATTORNEY TO BE NOTICED

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 3 of 9

Date Filed 04/13/2006 04/13/2006 04/13/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/28/2006
06/08/2006 06/08/2006
06/08/2006 06/13/2006 06/13/2006 06/13/2006 06/13/2006 06/13/2006 06/13/2006 06/13/2006
06/16/2006
07/05/2006 07/05/2006

# Docket Text
1 COMPLAINT filed by Plaintiff Equal Employment Opportunity Commission; Jury Demand.(ar, ) (Entered: 04/14/2006)
2 CIVIL Cover Sheet (ar, ) (Entered: 04/14/2006)
3 ATTORNEY Appearance for Plaintiff Equal Employment Opportunity Commission by Richard John Mrizek (ar, ) (Entered: 04/14/2006)
4 ATTORNEY Appearance for Plaintiff Equal Employment Opportunity Commission by John C. Hendrickson (Hendrickson, John) (Entered: 04/17/2006)
5 ATTORNEY Appearance for Plaintiff Equal Employment Opportunity Commission by Gregory M. Gochanour (Gochanour, Gregory) (Entered: 04/17/2006)
6 ATTORNEY Appearance for Defendant Ceisel Masonry, Inc. by Julie Ann Hofherr Bruch (Bruch, Julie) (Entered: 04/17/2006)
7 ATTORNEY Appearance for Defendant Ceisel Masonry, Inc. by Allison Victoria Smith (Smith, Allison) (Entered: 04/17/2006)
8 WAIVER OF SERVICE returned executed by Equal Employment Opportunity Commission. Ceisel Masonry, Inc. waiver sent on 4/14/2006, answer due 6/13/2006. (Mrizek, Richard) (Entered: 04/28/2006)
9 MOTION to intervene by Domingo Ramirez and Cuauhtemoc Guerrero. (gcy, ) (Entered: 06/09/2006)
10 NOTICE of Motion by Cuauhtemoc Guerrero, Domingo Ramirez for presentment of motion to intervene 9 before Honorable Harry D. Leinenweber on 6/13/2006 at 09:30 AM. (gcy, ) (Entered: 06/09/2006)
11 MEMORANDUM by Intevenors in Support of its motion to intervene. (gcy, ) (Entered: 06/09/2006)
12 ATTORNEY Appearance for Unknowns Cuauhtemoc Guerrero, Domingo Ramirez by Daniel Aaron Dorfman (Dorfman, Daniel) (Entered: 06/13/2006)
13 ATTORNEY Appearance for Defendant Ceisel Masonry, Inc. by Jane Marie May (May, Jane) (Entered: 06/13/2006)
14 NOTICE by Ceisel Masonry, Inc. Disclosure of Interested Parties/Affiliates (Bruch, Julie) (Entered: 06/13/2006)
15 ANSWER to Complaint and Affirmative Defenses by Ceisel Masonry, Inc.(Bruch, Julie) (Entered: 06/13/2006)
16 ATTORNEY Appearance for Unknowns Cuauhtemoc Guerrero, Domingo Ramirez by Todd Lawrence McLawhorn (McLawhorn, Todd) (Entered: 06/13/2006)
17 ATTORNEY Appearance for Unknowns Cuauhtemoc Guerrero, Domingo Ramirez by Kenneth Michael Kliebard (Kliebard, Kenneth) (Entered: 06/13/2006)
18 MINUTE entry before Judge Harry D. Leinenweber : Domingo Ramierez and Cuauhtemoc Guerrero motion to intervene 9 is granted. Status hearing set for 7/27/06 at 9:00 a.m. Party Domingo Ramierez, and Cuauhtemoc Guerrero added. Mailed notice (eav, ) (Entered: 06/14/2006)
19 ATTORNEY Appearance for Intervenor Plaintiff Domingo Ramierez by Laurie Arden Wardell Attorney Appearance for Intervenor Plaintiffs Domingo Ramirez and Cuate Guerrero by Laurie Arden Wardell (Wardell, Laurie) (Entered: 06/16/2006)
20 MOTION by Intervenor Plaintiffs Domingo Ramierez, Cuauhtemoc Guerrero to reassign case Based on Relatedness (Dorfman, Daniel) (Entered: 07/05/2006)
21 NOTICE of Motion by Daniel Aaron Dorfman for presentment of motion to reassign case 20 before Honorable Harry D. Leinenweber on 7/11/2006 at 09:30 AM. (Dorfman, Daniel) (Entered: 07/05/2006)

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 4 of 9

07/07/2006 07/25/2006
07/28/2006 02/05/2007
02/05/2007 02/07/2007
07/25/2007 08/31/2007 09/27/2007 12/13/2007 01/30/2008
01/30/2008 02/13/2008 04/08/2008 04/08/2008 04/10/2008
04/25/2008

22 MINUTE entry before Judge Harry D. Leinenweber : The Unopposed Motion for Reassignment based on relatedness now noticed for July 11, 2006 is reset by the court to July 25, 2006 at 9:30 a.m. Mailed notice (wp, ) (Entered: 07/07/2006)
23 MINUTE entry before Judge Harry D. Leinenweber : The unopposed motion for reassignment of case 06 C 2084 now pending before Judge Wayne R. Anderson, based on relatedness 20 is granted. Status hearing reset to 7/25/2007 at 9:00 a.m. Discovery cut−off date 7/25/07. Mailed notice (eav, ) (Entered: 07/28/2006)
24 ANSWER to Complaint and Affirmative Defenses to Intervenors' Complaint by Ceisel Masonry, Inc.(Bruch, Julie) (Entered: 07/28/2006)
25 MOTION by Unknowns Cuauhtemoc Guerrero, Domingo Ramirez, Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiffs Domingo Ramierez, Cuauhtemoc Guerrero to compel Discovery (Attachments: # 1 Certificate of Service)Associated Cases: 1:06−cv−02075, 1:06−cv−02084(Dorfman, Daniel) (Entered: 02/05/2007)
26 NOTICE of Motion by Daniel Aaron Dorfman for presentment of motion to compel,,, 25 before Honorable Harry D. Leinenweber on 2/7/2007 at 09:30 AM. (Dorfman, Daniel) (Entered: 02/05/2007)
27 MINUTE entry before Judge Harry D. Leinenweber :Plaintiffs' Motion to compel 25 is granted. Defendant to respond to all outstanding discovery by 2/28/2007. Discovery cut−off date ordered vacated. Status hearing date to stand.Mailed notice (wp, ) (Entered: 02/09/2007)
28 MINUTE entry before Judge Harry D. Leinenweber :Status hearing heldand continued for 12/13/2007 at 09:00 AM.Mailed notice (wp, ) (Entered: 07/31/2007)
29 ATTORNEY Appearance for Defendant Ceisel Masonry, Inc. by Jeffrey Ray Rosenberg (Rosenberg, Jeffrey) (Entered: 08/31/2007)
30 MINUTE entry before Judge Harry D. Leinenweber :Plaintiffs' Motion for leave of court to file second amended complaint is granted.Mailed notice (wp, ) (Entered: 10/02/2007)
31 MINUTE entry before Judge Harry D. Leinenweber :Status hearing held on 12/13/2007. Status hearing set for 2/28/2008 at 09:00 AM. Discovery to be completed by 2/28/2008.Mailed notice (wp, ) (Entered: 12/13/2007)
32 MOTION by Defendant Ceisel Masonry, Inc. to bar Plaintiff EEOC From Identifying Any Additional Prospective Class Members (Attachments: # 1 Exhibit EEOC answer to interr# 2 Exhibit 8.29.07 Ltr to EEOC# 3 Exhibit Suppl Interr to Plt EEOC# 4 Exhibit 12.19.07 Corr. to Plts# 5 Exhibit Kyles v. JK Guardian)(Bruch, Julie) (Entered: 01/30/2008)
33 NOTICE of Motion by Julie Ann Hofherr Bruch for presentment of motion to bar, 32 before Honorable Harry D. Leinenweber on 2/13/2008 at 09:30 AM. (Bruch, Julie) (Entered: 01/30/2008)
34 MINUTE entry before Judge Harry D. Leinenweber :Defendant's Motion to bar 32 is withdrawn. Status hearing reset for 4/10/2008 at 09:00 AM. Discovery extended to 4/11/2008.Mailed notice (wp, ) (Entered: 02/22/2008)
35 MOTION by Plaintiff Equal Employment Opportunity Commission to compel (Attachments: # 1 Certificate of Service)(Ginsburg, Matthew) (Entered: 04/08/2008)
36 NOTICE of Motion by Matthew J Ginsburg for presentment of motion to compel 35 before Honorable Harry D. Leinenweber on 4/10/2008 at 09:30 AM. (Ginsburg, Matthew) (Entered: 04/08/2008)
37 MINUTE entry before Judge Honorable Harry D. Leinenweber:Plaintiffs' Motion to compel 35 is granted. Discovery extended to 5/23/2008. Status hearing held on 4/10/2008. Status hearing set for 5/22/2008 at 09:00 AM.Mailed notice (wp, ) (Entered: 04/11/2008)
38 ATTORNEY Appearance for Defendant Ceisel Masonry, Inc. by Saira Janine Alikhan (Alikhan, Saira) (Entered: 04/25/2008)

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 5 of 9

05/22/2008 07/02/2008 07/02/2008 07/07/2008 07/07/2008 07/08/2008 07/16/2008
08/22/2008 08/22/2008 08/22/2008
08/22/2008 08/22/2008
08/22/2008 08/22/2008 08/22/2008

39 MINUTE entry before the Honorable Harry D. Leinenweber:Status hearing held on 5/22/2008. Status hearing set for 7/9/2008 at 09:00 AM. Dispositive motions to be filed by 7/9/2008.Mailed notice (wp, ) (Entered: 05/27/2008)
40 MOTION by counsel for Defendant Ceisel Masonry, Inc. to withdraw as attorney For Saira J. Alikhan (Bruch, Julie) (Entered: 07/02/2008)
41 NOTICE of Motion by Julie Ann Hofherr Bruch for presentment of motion to withdraw as attorney 40 before Honorable Harry D. Leinenweber on 7/9/2008 at 09:30 AM. (Bruch, Julie) (Entered: 07/02/2008)
42 MOTION by Plaintiff Equal Employment Opportunity Commission for extension of time to file dispositive motion (Attachments: # 1 Certificate of Service)(Ginsburg, Matthew) (Entered: 07/07/2008)
43 NOTICE of Motion by Matthew J Ginsburg for presentment of extension of time 42 before Honorable Harry D. Leinenweber on 7/9/2008 at 09:30 AM. (Ginsburg, Matthew) (Entered: 07/07/2008)
44 MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing reset for 7/16/2008 at 09:00 AM. The court resets Defendant's motion to withdraw and Plaintiff's motion for extension of time to 7/16/2008 at 9:00 a.m.Mailed notice (wp, ) (Entered: 07/08/2008)
45 MINUTE entry before the Honorable Harry D. Leinenweber: Defendant Ceisel Masonry's Motion to Withdraw Saira J. Alikhan as counsel of record is granted. The Unopposed Motion for an Extension of Time to file Dispositive Motions is granted. Dispositive Motions now due by 8/22/2008.Mailed notice (vcf, ) (Entered: 07/22/2008)
46 MOTION by Defendant Ceisel Masonry, Inc. for partial summary judgment (Bruch, Julie) (Entered: 08/22/2008)
47 MEMORANDUM by Ceisel Masonry, Inc. in support of motion for partial summary judgment 46 (Attachments: # 1 Exhibit EEOC v. International Profit Assoc., # 2 Exhibit Jordan v. Chicago Transit)(Bruch, Julie) (Entered: 08/22/2008)
48 RULE 56.1 Statement by Ceisel Masonry, Inc. regarding motion for partial summary judgment 46 (Attachments: # 1 Exhibit EEOC Suppl Response to Interr., # 2 Exhibit Dep. of D. Ramirez, # 3 Exhibit C. Guerrero Charge of Discrimination, # 4 Exhibit F. Algarin Charge of Discrimination, # 5 Exhibit Dep. of Jose Alvarado, # 6 Exhibit Dep. of German Ortiz, # 7 Exhibit Dep. of Jeff Hankins, # 8 Exhibit Dep. of Alejandro Buenrostro, # 9 Exhibit Dep. of Adrian Posada, # 10 Exhibit Dep. of Adalbert Ceisel, # 11 Exhibit Notices of Depositions)(Bruch, Julie) (Entered: 08/22/2008)
49 NOTICE of Motion by Julie Ann Hofherr Bruch for presentment of motion for partial summary judgment 46 before Honorable Harry D. Leinenweber on 8/27/2008 at 09:30 AM. (Bruch, Julie) (Entered: 08/22/2008)
50 MOTION by Plaintiff Equal Employment Opportunity Commission for summary judgment for Partial Summary Judgment (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion for Summary Judgment, # 2 Rule 56.1 Statement of Uncontested Facts, # 3 List of Exhibits, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q, # 21 Exhibit R, # 22 Exhibit S, # 23 Exhibit T, # 24 Exhibit U, # 25 Exhibit V, # 26 Exhibit W, # 27 Exhibit X, # 28 Exhibit Y)(Mrizek, Richard) (Entered: 08/22/2008)
51 NOTICE of Motion by Richard John Mrizek for presentment of motion for summary judgment,, 50 before Honorable Harry D. Leinenweber on 8/27/2008 at 09:30 AM. (Mrizek, Richard) (Entered: 08/22/2008)
52 MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file (Mrizek, Richard) (Entered: 08/22/2008)
53 NOTICE of Motion by Richard John Mrizek for presentment of motion for leave to file 52 before Honorable Harry D. Leinenweber on 8/27/2008 at 09:30 AM. (Mrizek, Richard) (Entered: 08/22/2008)

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 6 of 9

08/27/2008 10/08/2008 10/08/2008 10/08/2008
10/08/2008 10/08/2008 10/16/2008 10/22/2008
10/22/2008 10/23/2008 10/23/2008 11/10/2008

54 MINUTE entry before the Honorable Harry D. Leinenweber:Plaintiff's motion for leave to file an expanded brief is granted. Briefing schedule set on the parties motions for partial summary judgment. Responses due 10/8/2008. Replies due 10/22/2008. The court will rule orally on 11/19/2008. The court will rule orally on 11/19/2008 at 9:00a.m.Mailed notice (vcf, ) (Entered: 09/04/2008)
55 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant Ceisel Masonry, Inc. for partial summary judgment 46 (Attachments: # 1 Statement of Additional Facts, # 2 Exhibit List, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N)(Mrizek, Richard) (Entered: 10/08/2008)
56 RULE 56 Response to Defendant's Statement of Facts Statement by Equal Employment Opportunity Commission regarding motion for partial summary judgment 46 (Mrizek, Richard) (Entered: 10/08/2008)
57 RESPONSE by Defendant Ceisel Masonry, Inc. to motion for summary judgment,, 50 Requiring Denial of Plaintiff's Motion For Partial Summary Judgment (Attachments: # 1 2003 Employee Ethnic Breakdown, # 2 CM Organizational Chart, # 3 CM Supp Answers to Plt Interrs, # 4 Dep. of A. Ceisel, # 5 Dep. of C. Guerrero, # 6 Dep. of D. Ramirez, # 7 Dep. of E. Bernhardt, # 8 Dep. of F. Bibeau, # 9 Dep. of G. Ortiz, # 10 Dep. of J. Diaz, # 11 Dep. of J. Hankins, # 12 Dep. of S. Szabo, # 13 Dep. of T. Leakakos, # 14 Dft Response to Plt 4 Req Admissions, # 15 Joint Agreement 2000−2004, # 16 Joint Agreement, # 17 Plt EEOC Suppl Resp to Df Interr to EEOC, # 18 Sexual Harassment Discrimination Policy)(Bruch, Julie) (Entered: 10/08/2008)
58 MEMORANDUM by Ceisel Masonry, Inc. in Opposition to motion for summary judgment,, 50 (Attachments: # 1 Barry v. Liddle, # 2 Kerzman v. NCH, # 3 Patsakis v. Eastern Orthodox 1, # 4 Patsakis v. Eastern Orthodox, # 5 Vance v. Ball State, # 6 Yarns v. Forman)(Bruch, Julie) (Entered: 10/08/2008)
59 RESPONSE by Defendant Ceisel Masonry, Inc. to motion for summary judgment,, 50 Plaintiffs' Statement of Material Facts (Attachments: # 1 Dep. of C. Guerrero, # 2 Dep. of F. Bibeau, # 3 Dep. of J. Calderon, # 4 Dep. of J. Diaz, # 5 Dep. of J. Hankins, # 6 Dep. of S. Szabo Vol. 1)(Bruch, Julie) (Entered: 10/08/2008)
60 RESPONSE by Defendant Ceisel Masonry, Inc. to motion for summary judgment,, 50 Plaintiffs' Statement of Material Facts Amended (Attachments: # 1 Dep. of C. Guerrero, # 2 Dep. of F. Bibeau, # 3 Dep. of J. Calderon, # 4 Dep. of J. Diaz, # 5 Dep. of J. Hankins, # 6 Dep. of S. Szabo Vol. 1)(Bruch, Julie) (Entered: 10/16/2008)
61 RESPONSE by Defendant Ceisel Masonry, Inc. to response in opposition to motion, 55 EEOC's Local Rule 56.1(b)(3)(B) Statement of Additional Facts (Attachments: # 1 Exhibit Ceisel Masonry Organizational Chart, # 2 Exhibit Anti−Harassment Policy, # 3 Exhibit Dep. of J. Hankins, # 4 Exhibit Dep. of A. Ceisel, # 5 Exhibit Dep. of S. Szabo, # 6 Exhibit Dep. of E. Bernhardt, # 7 Exhibit Dep. of A. Buenrostro, # 8 Exhibit Dep. of T. Leakakos, # 9 Exhibit Dep. of M. Hemmer, # 10 Exhibit Dep. of J. Diaz, # 11 Exhibit Dep. of F. Bibeau)(Bruch, Julie) (Entered: 10/22/2008)
62 REPLY by Ceisel Masonry, Inc. to MOTION by Defendant Ceisel Masonry, Inc. for partial summary judgment 46 (Attachments: # 1 EEOC v. Inter−National Profit Assoc, # 2 EEOC v. Custom Companies, # 3 EEOC v. Harvey L. Walner, # 4 Haywood v. Evergreen Motor Cars, # 5 Fouce v. Lowe's Home Improvement)(Bruch, Julie) (Entered: 10/22/2008)
63 REPLY by Plaintiff Equal Employment Opportunity Commission to motion for summary judgment,, 50 (Attachments: # 1 Exhibit List, # 2 Exhibit AA, # 3 Exhibit BB, # 4 Exhibit CC, # 5 Exhibit DD, # 6 Exhibit EE, # 7 Exhibit FF, # 8 Exhibit GG)(Mrizek, Richard) (Entered: 10/23/2008)
64 RESPONSE by Plaintiff Equal Employment Opportunity Commission to Response, 60 Defendant Ceisel's Statement of Additional Facts (Mrizek, Richard) (Entered: 10/23/2008)
65 MOTION by Defendant Ceisel Masonry, Inc. to strike and Objection to Plaintiffs' Sixth Request for Admissions (Attachments: # 1 Exhibit Plaintiffs sixth request, # 2 Exhibit Agristor v Lunding, # 3 Exhibit Maddox v Kincaid)(Bruch, Julie) (Entered:

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 7 of 9

11/10/2008 11/11/2008 11/14/2008 11/14/2008 11/21/2008 11/21/2008 12/01/2008
12/11/2008
12/12/2008 12/12/2008 12/18/2008 01/23/2009 01/23/2009 02/12/2009 02/19/2009

11/10/2008)
66 NOTICE of Motion by Julie Ann Hofherr Bruch for presentment of motion to strike, 65 before Honorable Harry D. Leinenweber on 11/13/2008 at 09:30 AM. (Bruch, Julie) (Entered: 11/10/2008)
67 Amended NOTICE of Motion by Julie Ann Hofherr Bruch for presentment of motion to strike, 65 before Honorable Harry D. Leinenweber on 11/19/2008 at 09:30 AM. (Bruch, Julie) (Entered: 11/11/2008)
68 MINUTE entry before the Honorable Harry D. Leinenweber:Defendants Motion to Strike now noticed for 11/19/2008 is reset by the court for 11/21/2008 at 09:30 AM. Mailed notice (wp, ) (Entered: 11/14/2008)
69 MINUTE entry before the Honorable Harry D. Leinenweber:The oral ruling date of 11/19/2008 on the motion for partial summary judgment is stricken. The Court will rule by mail.Mailed notice (wp, ) (Entered: 11/14/2008)
70 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Michael T. Mason for the purpose of holding proceedings related to: settlement conference.(wp, )Mailed notice. (Entered: 12/01/2008)
71 MINUTE entry before the Honorable Harry D. Leinenweber:Defendant's Motion to strike 65 is denied. Trial set for 3/16/2009 at 10:00 a.m. Pretrial order due by 3/9/2009. Cause referred to Magistrate Judge Mason for settlement conference.Mailed notice (wp, ) (Entered: 12/01/2008)
72 MINUTE entry before the Honorable Michael T. Mason:This matter having been referred for settlement conference, an initial status hearing is set for 12/17/2008 at 09:00 a.m. in courtroom 2214 for the purpose of setting a settlement conference date. However, parties may confer with one another and contact the courtroom deputy, (312) 435−6051 to schedule the settlement conference in lieu of attending the status hearing. If parties do not contact the courtroom deputy by 12/12/08, the 12/17/08 status hearing will proceed. Mailed notice (rbf, ) (Entered: 12/01/2008)
73 MINUTE entry before the Honorable Michael T. Mason:Status hearing set for 12/17/08 is stricken. Settlement Conference set for 2/12/09 at 01:30 p.m. Parties are to strictly abide by this Court's Standing Order for Settlement Conference. Plaintiff's counsel is to submit copies of both plaintiff's settlement demand letter and defendant's response letter to chambers, room 2206 by noon on 2/9/09. Failure to comply with this order will result in the cancellation of the settlement conference. Mailed notice (rbf, ) (Entered: 12/11/2008)
74 MOTION by Plaintiff Equal Employment Opportunity CommissionReschedule trial date Agreed and Joint Motion by the Parties (Mrizek, Richard) (Entered: 12/12/2008)
75 NOTICE of Motion by Richard John Mrizek for presentment of motion for miscellaneous relief 74 before Honorable Harry D. Leinenweber on 12/18/2008 at 09:30 AM. (Mrizek, Richard) (Entered: 12/12/2008)
76 MINUTE entry before the Honorable Harry D. Leinenweber:Parties Agreed Joint Motion to Reschedule Trial Date 74 is granted. Trial date reset for 5/4/2009 at 10:00 AM. Mailed notice (wp, ) (Entered: 12/29/2008)
77 MINUTE entry before the Honorable Harry D. Leinenweber:ENTER MEMORANDUM OPINION AND ORDER: Plaintiff's Motion for Partial Summary Judgment is Denied. Defendant's Motion for Partial Summary Judgment is Denied.Mailed notice (wp, ) (Entered: 01/23/2009)
78 MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 1/23/2009:Mailed notice(wp, ) (Entered: 01/23/2009)
79 MINUTE entry before the Honorable Michael T. Mason:Settlement conference held on 2/12/09. Status hearing set for 2/19/09 at 09:00 a.m. for report on settlement. Mailed notice. (rbf, ) (Entered: 02/12/2009)
80 MINUTE entry before the Honorable Michael T. Mason:Status hearing held on 2/19/09. Continued settlement conference set for 3/12/09 at 09:30 a.m.Mailed notice (rbf, ) (Entered: 02/19/2009)

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 8 of 9

03/12/2009
04/27/2009 04/27/2009 04/27/2009 04/27/2009
04/27/2009 04/27/2009 04/27/2009 04/27/2009
05/04/2009 05/14/2009

81 MINUTE entry before the Honorable Michael T. Mason:Settlement conference held on 3/11/09. Parties were not able to reach an agreement to settle the case at this time. All matters relating to the referral of this case having been resolved, the referral is closed and the case is returned to the assigned judge. Honorable Michael T. Mason no longer referred to the case.Mailed notice (rbf, ) Modified on 3/12/2009 (rbf, ). (Entered: 03/12/2009)
82 MOTION by Defendant Ceisel Masonry, Inc.in limine To Bar Certain Statements Regarding Don Etters (Bruch, Julie) (Entered: 04/27/2009)
83 MOTION by Defendant Ceisel Masonry, Inc.in limine to Preclude Plaintiffs from Introducing Evidence Regarding Charges of Discrimination (Attachments: # 1 Exhibit Charges of Discrimination, # 2 Exhibit E0068, # 3 Exhibit Tompulis v. Schwartz & Freeman 4.27.09)(Bruch, Julie) (Entered: 04/27/2009)
84 MOTION by Defendant Ceisel Masonry, Inc.in limine to Bar Plaintiffs From Arguing that Ceisel Masonry Foremen are Supervisors (Attachments: # 1 Exhibit A. Ceisel Dep., # 2 Exhibit Hankins Dep.)(Bruch, Julie) (Entered: 04/27/2009)
85 MOTION by Defendant Ceisel Masonry, Inc.in limine to Bar Certain Statements of Algarin, Alvarado, Buenrostro, Calderon, C. Guerrero, I. Guerrero, Posada, Torres, Ortiz, and Ramirez (Attachments: # 1 Exhibit Algarin Dep., # 2 Exhibit Alvarado Dep., # 3 Exhibit Buenrostro Dep., # 4 Exhibit Calderon Dep., # 5 Exhibit C. Guerrero Dep., # 6 Exhibit I. Guerrero Dep., # 7 Exhibit Posada Dep., # 8 Exhibit Torres Dep., # 9 Exhibit Ortiz Dep., # 10 Exhibit Ramirez Dep.)(Bruch, Julie) (Entered: 04/27/2009)
86 MOTION by Defendant Ceisel Masonry, Inc.in limine to Bar Certain Statements by Assurance Agency Personnel (Attachments: # 1 Exhibit Goh v. CRE Acquisition U.S. Dist. Lexis 5943)(Bruch, Julie) (Entered: 04/27/2009)
87 PROPOSED Pretrial Order (Mrizek, Richard) (Entered: 04/27/2009)
88 MOTION by Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiffs Domingo Ramierez, Cuauhtemoc Guerreroin limine To Exclude References To Prior Convictions (Ginsburg, Matthew) (Entered: 04/27/2009)
89 MOTION by Unknown Cuauhtemoc Guerrero, Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiffs Domingo Ramierez, Cuauhtemoc Guerreroin limine to Exclude Evidence of any Investigation done by Defendant's Counsel (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mrizek, Richard) (Entered: 04/27/2009)
93 MINUTE entry before the Honorable Harry D. Leinenweber:Trial date stricken. Mailed notice (wp, ) (Entered: 05/22/2009)
90 TRANSCRIPT OF PROCEEDINGS held on 12/13/07 before the Honorable Harry D. Leinenweber. COURT REPORTER CONTACT INFORMATION: Krista Burgeson, Krista_Burgeson@ilnd.uscourts.gov, 312−435−5567.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter, Krista Burgeson, Krista_Burgeson@ilnd.uscourts.gov, 312−435−5567. before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

05/14/2009

Redaction Request due 6/4/2009. Redacted Transcript Deadline set for 6/15/2009. Release of Transcript Restriction set for 8/12/2009. (Burgeson, Krista) (Entered: 05/14/2009)
91 TRANSCRIPT OF PROCEEDINGS held on 04/10/08 before the Honorable Harry D. Leinenweber. COURT REPORTER CONTACT INFORMATION: Krista Burgeson, Krista_Burgeson@ilnd.uscourts.gov, 312−435−5567.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter, Krista Burgeson, Krista_Burgeson@ilnd.uscourts.gov, 312−435−5567, before the deadline for Release

Case: 1:06-cv-2075 As of: 11/09/2016 08:23 PM CST 9 of 9

05/14/2009
05/22/2009 05/22/2009 02/12/2010

of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 6/4/2009. Redacted Transcript Deadline set for 6/15/2009. Release of Transcript Restriction set for 8/12/2009. (Burgeson, Krista) (Entered: 05/14/2009)
92 TRANSCRIPT OF PROCEEDINGS held on 05/22/08 before the Honorable Harry D. Leinenweber. COURT REPORTER CONTACT INFORMATION: Krista Burgeson, Krista_Burgeson@ilnd.uscourts.gov, 312−435−5567.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter, Krista Burgeson, Krista_Burgeson@ilnd.uscourts.gov, 312−435−5567, before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 6/4/2009. Redacted Transcript Deadline set for 6/15/2009. Release of Transcript Restriction set for 8/12/2009. (Burgeson, Krista) (Entered: 05/14/2009)
94 MINUTE entry before the Honorable Harry D. Leinenweber: Enter Consent Decree. (vcf, ) (Entered: 05/27/2009)
95 CONSENT Decree Signed by the Honorable Harry D. Leinenweber on 5/22/2009.Mailed notice(vcf, ) (Entered: 05/27/2009)
96 MINUTE entry before Honorable Harry D. Leinenweber:The case having been terminated by a consent decree 95 , both Defendant's motions in limine [82−86] and Plaintiffs' motions in limine [88−89] are denied as moot. Mailed notice (wp, ) (Entered: 02/12/2010)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

DOMINGO RAMIREZ and

)

CUAUHTEMOC GUERRERO,

)

)

Intervenors,

)

v.

)

)

CEISEL MASONRY, INC.

)

)

Defendant.

)

---------------------------)

CIVIL ACTION NO. 06 CV 2075 JURY TRIAL DEMAND

INTERVENORS' COMPLAINT

For a cause of action against derendant Cciscl Masonry Inc. ("Defendant" or "Ceise1"), intervenors Domingo Ramirez and Cuauhtemoc Guerrero (the "Intervenors") allege as follows:
Natnre of Action

1. The Intervenors seek to file its Intervenors' Complaint under Title VII ofthe Civil Rights Aet of 1964, as amended, 42 U.S.C. § 2000e et seq., ("Title VII"), to assert individual claims to correct unlawful employment practices on the basis of national origin and to provide appropriate relief.

DM l)S\~350~4I.v 1

2. The Intervenors' Complaint, which asscrts individual claims, arises out of the same facts and law as alleged by the Equal Employment Opportunity Commission ("EEOC") in this case,
Parties, Jurisdiction and Venue 3, Domingo Ramirez ("Ramirez") is a non-white Hispanic man currently residing in Berwyn, T1Iinois. From approximately 1996 to December 2003, Ramirez worked at Ceisel as a laborer. He is an employee for purposes of 42 lLS.C. § 2000e (f). 4. Cuauhtemoc Guerrero ("Guerrero") is a non-white Hispanic man currently residing in Lake Forest, T1Iinois. From approximately July 1995 through early Febnlary 2005, Guen'ero worked al Ceisel, first as a laborer and Ihen as a bricklayer. He is an employee for purposes of 42 U.S.C § 2000e (f). 5. Defendant is an Illinois corporation with its principal place or business located in Northbrook, T1Iin()is. Defendant ()perates a brick maB()llTY business. 6. This Court has subject matter jurisdiction over this controversy pursuant to 28 U.S.C §§ 1331, 1343 and 42lLS.C. § 2000e-5 (1")(3) . 7. Pursuant to 28 V.S.C § 1391, venue is proper in this district because Defendant resides in this district, and all wrongful acts and injuries occurred in this district.
General Allegations 8. Intervenors are non-white Hispanic former employees ofCeisel. 9. Intervenors have been exposed to the same lype or unlawful employment practices on the basis of race/national origin during the same period by the same group or managers as that complained of by (h", EEOC

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10. Prior to filing this lawsuit Intervenors filed charges of discrimination with the
EEOC alleging unlawful employment practices on the basis ofrace(national origin by Defendant.
I I. Intervenors have administratively exhaLLsted their claims at the EEOC.
12. Intervenors have sought OLtt and retained as their counsel the Chicago Lawyers'
Committee for Civil Rights Under Law, Inc., a non-profit, puhlic interest law firm that
specializes in class actions and employment discrimination cases and lawyers from Howrey LLP
with extensive class action experience in order to assert their individnal Title VIT claims.
Substantive Allegations of Wrongful Conduct 13. At all relevant times, managers at Ceisel have engaged in ,111 unremitting and
unlaw lui pattcrn of employment practices on the basis ofrace/national origin of Intervenors that
unreasonably interfered with their work environment. 14. The unlawful employment practices on the basis of race/national origin, which
managers inllicted on Intervenors and/or on class members on a frequent and prolonged basis, were unwelcome and include but are not limited to:
(a) managers regularly calling non-white Hispanic workers "wetbacks," ~~spics," and ~'fucking Mexicans," "border jumpcrs~" <~julios" and "chicos";
(b) managers regularly making COlllments such as "all Mexicans are good for is cutting grass," and "go back to your own country";
(c) managers making comments such a~ "1' ve hecn hunting and shooting cans Mexicans, Africans, Puerto Ricans";
(d) managers making comments such as "all you Mexicans are good for are your strong backs" and "you Mexicans are good for nothing";
(e) managers making commcnts to Puerto Rican workers such as "damn Puerto Rican" and "damn pork chop";
(I) managers making comments such as "you stupid Mexican-yoll are just like those fucking niggers"; 3

(g) managers making comments such as "niggers are lazy-you're hetter than niggers, hut you will always he Mexicans" and "you come to this cOllntry to use our welfare";
(h) managers taking steps to segregate and stigmatize non-white Hispanic workers, such as telling them to stay on the Mexican side of the work space and such as saying things like "watch what I do to this Mexican" and then splattering mortar in a Mexican worker's face;
(i) the owner of the company making comments sllch as "fucking Mexican" and "Mexicans don't know how to do anything"; and
(j) offensive graffiti, such as "spic" and '"this is where Mexicans belong," with an arrOw pointing to the toilet.
15_ Intervenors and/or other class mcmbers expressed to the managers perpetrating
these unlawful employment practices on the hasis of racclnational origin that they were
unwelcome and unwanted. In addition, the unlawful employment practices took place in the
presence of Defendant's high· level managers.
16. The managers committing the acts of unlawful employment practices on the hasis
of race/national origin, in fact, had and continue to have the power and authority to evaluate and
discipline, and in some cases, to tcmlinate employecs.
17. In addition, these managers warned Intervenors that thcy had the power and
authority to evaluate cmployees and to get them fircd.
18. These managers have used their actual and apparent employment powers to
coerce Intervenors to suhmit to unwanted unlawful employment practices on the basis of
race/national origin that unreasonahly interfered with their work environment.
19. At all relevant times, Defendant did not effectively provide or implement for all
of its workers any policy prohibiting unlawful employment practices on the basis of race/national
origin or any procedure [or victims or unlawful employment practices to seek redress and relier

IXvl IJs\:-u.')oM l.vl

4

It was not until Intervenors filed discrimination charges at the EEOC that Defendant established any anti-harassment policy.
20. Despite the failure to provide or implement any effective policy or procedure prohibiting unlaw fi.lI employment practices on the basis of race/national origin, Intervenors and/or other class members complained about the unlawful employment practices to managers and requested that it he stopped.
21. The unlawful employment practices on the basis of race/national ongm and retaliation described in Intervenors' Complaint are of a continuing nature in that they have been ongoing for a period of years.
22. The unlawful employment practices on the basis of race/national ongm and retaliation described in this Intervenors' Complaint damaged the Intervenors in that they have suCiered unnecessary and extreme degradation, humiliation, emotional distress and embanassment in the workplace.
23. The actions of Defendant m pemlitting, condoning and failing to conect the severe, frequent and prolonged unlawful employment practices on the basis of race/national origin by its managers constitute a malicious, intentional or reckless disregard or its known legal obligations_

CAUSE OF ACTION (Violation of Title VII for harassment based on national o..igin )

24. Intervenors restate and incorporate paragraphs 1-23 of this Intervenors Complaint

as though fully stated herein.

25. Title V11 prohibits unlawful employment practices on the basis or race/national

origin and aUlhori,.es e'luitahle relief and damages for such discrimination.

DM I JS\~350fo:4I.v I

5

26. Defendant violated Title VII on account of its unlawful employment practices on
the basis ofrace/national origin. The unlawful employment practices were ongoing, severe and
pervasive, and unreasonably altered the terms of their employment.
27. The unlawful employment practices have: (1) caused Intervenors extreme
humiliation and emotional distress and (2) deprived Intervenors of equal employment
opportunities.
28. The above·described conduct of Defendant constitutes a vi(Jlation of Title VII.
Intervenors are entitled to eqllilable relief, compensatory and punitive damages in amounts
sufficient to punish Defendant and to deter Defendant from continuing with unlawful
employment practices on the basis of race/national origin.
29. Intervenors arc cntitlcd to injunctive relief to stop the Defendant's wrongful
conduct.
WHEREFORE, intervenors Ranlirez and Guerrero respectfully request that this Court:
(a) grant a pennanent mJunctJon enJommg Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in unlawful employment practices on the basis of raceInationaI origin;
(b) order Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for its employees regardless of national origin, and which eradicate the effects of its unlawful employment practices;
(c) order Dc1endant to compensate Domingo Ranlircz and Cuahetemoc Guerrero for past and future non-pecuniary losses resulting from the unlawful employment practices, including emotional pain, suffering, loss of enjoyment of life, humiliation, and inconvenience in amounts to be determined at trial;
(d) order Delendant to pay Domingo Ramirez and Cuahetemoc Guerrero pumhve damages for iB malicious and reckless conduct in amounts to be detennined at trial.

DM lJS\x.::;SOX4I.v1

6

(e) prohibit Derendant from discriminating against any imiividllal for engaging in protected activity under Title VII of the Civil Rights Act of 1964, or for oppo~ing practices made unlawful by Title VII, or for participating in this lawsuit;
(f) award Domingo Ranlirez and Cuahetemoc Guerrero their reasonable altomeys' fees and C()~t~; and
(g) grant such further relief as this Court deems necessary and proper in the public interest.
JURY DEMAND
intervenors demand trial by jury on all matters triable by ajury.

Dated: June 8, 2006
Laurie Wardell Chicago Lawyers' Committee fl)r Civil Rights Under Law, Inc. 100 North LaSalle Street Suite 600 Chicago, iL 60602-2403

Respectfully submittcd,
~A~ Kenneth M. Klie Todd L McLawhorn Daniel A. Dorfman Attorney # 6286059 Howrey LLP 321 North Clark Strect Suite 3400 Chicago, II, 60610 (312) 595-1239

L)M lJS.\f;350~41.vl

7