IN THE UNITED STATES DISTRICT COURT

FOR NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT SMITH, )

)

Plaintiff, )

v. ) No. 11 CV 9147

)

ROSEBUD FARM, INC., )

d/b/a ROSEBUD FARMSTAND, ) Judge Robert M. Dow, Jr.

ROCKY MENDOZA, )

CARLOS CASTANEDA, )

)

Defendants. )

DEFENDANT ROSEBUD FARM, INC. d/b/a ROSEBUD FARMSTAND'S

MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendant Rosebud Farm, Inc., d/b/a Rosebud Farmstand, by its undersigned attorneys, 

and pursuant to Fed. R. Civ. P. 50(a) moves for judgment as a matter of law as to the alleged 

claims of Plaintiff Robert Smith for sexual harassment and retaliation pursuant to Title VII of the 

Civil rights Act of 1964, as amended, and racial harassment and retaliation pursuant to Section 

1981. In support of its Motion, Rosebud Farmstand states:

1. Fed R. Civ. P. 50(a)(1) provides that:

If a party has been fully heard on an issue during a jury trial and the court finds 

that a reasonable jury would not have a legally sufficient evidentiary basis to find 

for the party on that issue, the court may:

(A) resolve the issue against the party; and

(b) grant a motion for judgment as a matter of law against the party on a claim 

or defense that, under the controlling law, can be maintained or defeated 

only with a favorable finding on that issue.

2. Fed. R. Civ. P. 50()a)(2) further states that a "motion for judgment as a matter of 

law may be made at any time before the case is submitted to the jury."
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3. Under Fed. R. Civ. P. 50, judgment as a matter of law ("JMOL") is appropriate 

when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis 

for a reasonable jury to find for that party on that issue. Reeves v. Sanderson Plumbing Prods., 

530 U.S. 133, 149 (2000) (quoting Fed. R. Civ. P. 50(a). To determine if a JMOL is proper, the 

court "must draw all reasonable inferences in favor of the nonmoving party, and it may not make 

credibility determinations or weigh the evidence. "Waite v. Bd. of Trs., 408 F.3d 339, 343 (7th

Cir. 2005).

TITLE VII – SEXUAL HARASSMENT

4. The Court should enter judgment as a matter of law on Plaintiff's Title VII claim 

for same-sex sexual harassment. To succeed on a claim for hostile work environment sexual 

harassment, Plaintiff had to come forward with evidence of the following: (1) he was subjected 

to unwelcome harassment; (2) the harassment was based on his sex; (3) the harassment was 

sufficiently severe or pervasive so as to alter the condition of his employment and create a hostile 

or abusive atmosphere; and (54) there is a basis for employer liability. Boumehdi v. Plastag 

Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007) (citing Kampmier v. Emeritus Corp., 472 F.3d 

930, 940 (7th Cir. 2007)).

5. Plaintiff failed to present sufficient evidence to support each of these elements. 

First, the evidence Plaintiff and his witnesses presented at trial does not establish that he was

subjected to conduct that amounted to unwelcome harassment. Plaintiff's testimony about alleged 

repeated, daily touching of his private parts and buttocks that "lasted a second" was not 

confirmed by the witnesses who Plaintiff testified saw everything. Plaintiff did not present 

evidence to support his claim Castaneda engaged in harassment. Plaintiff's testimony that 

Castaneda allegedly put his between his legs and touched his privates in 2003, even if construed 
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as true, is too remote to impose Supervisor liability. Although Plaintiff confirmed on crossexamination that Castaneda allegedly only touched him in 2003, his attempts to change his story 

and his testimony about alleged later touching by Castaneda were vague and unspecific and did 

not describe touching of private parts. Rather, Plaintiff asserted Castaneda slapped his butt a few 

times over the course of the next four years. The evidence presented also established Mendoza 

was not a supervisor and he did not engage in harassment. With the exception of one story where 

Mendoza allegedly put his arms around Plaintiff, his testimony about Mendoza was similarly 

vague and uncorroborated. Cari Alexander testified he worked in the front of the store and never 

behind the meat counter or in the meat department. He testified he allegedly saw only once a 

"short Mexican" co-worker's hand on Plaintiff's butt. Based on Alexander's employment record, 

which was clarified on cross-examination, the isolated incident had to occur during a time period 

after January 7, 2008 when Plaintiff testified all alleged touching had stopped. Corey Barr 

testified he allegedly saw Plaintiff's body touched only once in 2006, outside the 300 day 

limitations period, and never again. The alleged touching to which Gary Holloway testified he 

observed occurred during a time period after Plaintiff testified all touching had stopped. Plaintiff 

admitted he was not subjected to verbal sexual harassment. His testimony about Mendoza 

allegedly asking him once to have sex in 2006, winking at him and gesturing "let's go" therefore, 

is not relevant to his claim. 

Second, Plaintiff did not present evidence to show the alleged harassment was based on 

sex under the standards set forth in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 

80-81 (1998). Plaintiff presented no credible evidence that the co-workers who he claimed 

touched him were homosexuals. His uncorroborated testimony about alleged “faggot stuff” does 

not carry his burden. Plaintiff also did not demonstrate a general hostility toward men in the 
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workplace. He testified the opposite was true and that his co-workers liked men. Plaintiff 

testified there were no women in the meat department. Plaintiff could not, therefore, show 

similarly situated women were treated differently than men in the meat department because there 

were no similarly situated women. He also offered no evidence that women came behind the 

meat counter or into the meat department with any meaningful frequency. In addition, his 

testimony that women's private parts were not touched is beyond the scope of his Complaint. 

Plaintiff never presented such a legal theory in his complaint. In any event, Plaintiff offered no 

competent evidence to make such a showing. 

Third, Plaintiff did not offer evidence to demonstrate the alleged harassment was so 

severe to alter the conditions of employment. Plaintiff testified his performance was excellent at 

all times. Although Plaintiff claimed his environment became "intolerable" leading him to quit, 

there was no evidence to support that claim. The evidence Plaintiff presented demonstrated the 

opposite is true. All touching stopped after he filed his Charge. Finally, Plaintiff failed to 

demonstrate there is a basis for employer liability. Because Plaintiff did not establish that 

Castaneda – the only supervisor – engaged in harassment, his "[n]otice or knowledge of the 

harassment is a prerequisite for liability." Hall v. Bodine Elec. Co., 276 F.3d 345, 346 (7th Cir. 

2002). Plaintiff failed to present evidence that Castaneda or the store's Owner had notice or 

knowledge of the alleged harassment before he filed his Charge. None of Plaintiff's witnesses 

presented competent or reliable evidence of first-hand knowledge Plaintiff ever complained 

before filing his Charge. For all of these reasons, judgment should be entered as a matter of law 

on Plaintiff's Title VII sexual harassment claim.
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TITLE VII – RETALIATION

6. The Court also should enter judgment as a matter of law on Plaintiff's Title VII 

retaliation claim. The elements of a retaliation claim require Plaintiff to show that: (1) he 

engaged in statutorily protected activity; (2) he suffered an adverse action taken by the employer; 

and (3) there was a causal connection between the two. Tomanovich v. City of Indianapolis, 457 

F.3d 656, 663 (7th Cir. 2006) (quotations and citations omitted). While Plaintiff presented 

sufficient evidence that he filed a Charge of Discrimination, Plaintiff failed to demonstrate that 

he suffered continued harassment or other new alleged mistreatment after he filed his Charge that 

forced him to quit or that there was a causal connection between his Charge and his decision to 

quit. Plaintiff's Complaint allegations concerning alleged Title VII retaliation were detailed and 

specific: "In 2008, after the plaintiff's EEOC charge of 7 January, 2008, until the plaintiff 

terminated his employment in June 2008, the defendants would ignore the plaintiff, give him the 

cold shoulder, exclude him from meetings, scratch his car, slash his tires and expose meat knives 

threateningly." (Docket No. 1, ¶¶42,25). Plaintiff testified he had no evidence to identify any coworker or witness to scratching his car, slashing his tires, or breaking his windshield and TV and 

spitting on his window (which he added at trial). His proferred evidence of alleged cold 

shoulders does not rise to the level of an adverse employment action sufficient to force Plaintiff 

to quit. See e.g., Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1039 (7th Cir. 

1998); Bell v. Envtl. Prot. Agency, 232 F.3d 546, 555 (7th Cir. 2000). Plaintiff's testimony about 

alleged exposing meat knives and banging cleavers was too vague and unspecific and could not 

be corroborated by any of Plaintiff's witnesses. Plaintiff also testified he never reported this 

alleged conduct to the police, to Castaneda or the Owner. Plaintiff also presented no events to 

support any of these alleged harms actually happened in the first place. Because Plaintiff 
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confirmed he never was threatened, Plaintiff's evidence simply is insufficient to support a jury 

verdict that Plaintiff suffered an adverse action relating to alleged meat department utensil use 

activity sufficient to force him to quit, particularly where, as here, he stayed for six months after 

filing his Charge while this activity allegedly was taking place. Because Plaintiff's limited 

evidentiary offering was insufficient to show he suffered an adverse action, Plaintiff failed to 

show the requisite causal connection to filing his Charge on January 7, 2008.

SECTION 1981 – RACIAL HARASSMENT

7. The Court should enter judgment as a matter of law on Plaintiff's Section 1981 

racial harassment claim. This Court previously dismissed Plaintiff's Title VII racial harassment 

claim because Plaintiff failed to allege he was a victim of racial harassment in his Charge that 

underlies this lawsuit. Plaintiff's attempt to offer evidence that allegations of racial harassment 

were presented in connection with his Charge is useless to his Section 1981 claim filed more 

than three years after he quit and filed more than eight years after the conduct allegedly started. 

To the contrary, because Plaintiff admitted during his testimony that the only written complaint 

he ever filed – his Charge – contained no such allegation, Plaintiff carried a heavy burden at trial 

to show he otherwise was subjected to harassment because of his race, that he suffered an

adverse action, and that there is a basis for employer liability. See Humphries v. CBOCS West, 

Inc., 474 F.3d 387, 403-04 (7th Cir. 2008) (same substantive methods of proof apply to claims 

brought under Title VII and Section 1981); Andrews v. CBOCS, Inc., 743 F.3d 230, 234 (75th

Cir. 2014).

Plaintiff's Complaint was filed December 23, 2011. The four year statute of limitations 

date is, therefore, December 23, 2007. Plaintiff testified that various co-workers at various times 

throughout his employment called him a nigger, a slave, and a money and told him to go back to 
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Africa, to go back to Ethiopia, and that niggers had big dicks and asses. Plaintiff claimed this 

alleged name calling went on from the day he started in 2003 on virtually a daily basis until he 

quit almost five years later. Contrary to Plaintiff's testimony, none of his witnesses could 

corroborate Plaintiff's testimony. The two witnesses who were there for any part of the time after 

December 23, 2007 were Alexander and Holloway. Alexander testified he never heard any name 

calling. Holloway testified the co-workers did not call Plaintiff anything. The only thing 

Holloway testified he heard was that someone allegedly told him to "take his ass back to Africa," 

language different than what Plaintiff claimed was stated to him. In short, Plaintiff's evidence of 

alleged conduct during the limitations period was indicative of a few isolated, stray remarks, at 

best, even if construed as true, and were insufficient to encompass the alleged conduct dating 

back to 2003 to justify a continuing violation analysis. Barr left employment in July 2007, before 

the limitations trigger date. Even if the Court considers Barr's testimony, Barr denied ever 

hearing the bulk of the alleged slurs to which Plaintiff testified and he could not have 

corroborated Plaintiff's testimony through June 21, 1008 as Plaintiff claimed. Plaintiff failed to 

present evidence of any adverse action taken towards him during his employment as a result of 

racial harassment or discrimination. Plaintiff also failed to show there is a basis for employer 

liability. The Court already has entered summary judgment in favor of the individual Defendants 

Castaneda and Mendoza. There is a legally insufficient evidentiary basis to support a conclusion 

Plaintiff notified Rosebud Farmstand that he was being subjected to alleged racial harassment by 

his co-workers. The only written complaint Plaintiff ever filed relating to his race or his gender 

during the limitations period was his written and verified "under penalty" Charge of 

Discrimination signed on January 7, 2008. Although there is no charge filing requirement for a 

Section 1981 claim, Plaintiff nonetheless must produce sufficient evidence he gave his employer 
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notice that he allegedly was being subjected to racial harassment. Plaintiff's omission of the 

alleged racial slurs from the only documented complaint he made during the limitations period is 

compelling evidence Plaintiff either was not subjected to racial harassment or if he was, he did 

not view his work environment as objectively or subjectively racially hostile since he did not 

mention it. Plaintiff's testimony that he complained verbally to Castaneda about alleged racial 

harassment was not substantiated by his witnesses. Judgment as a matter of law should be 

entered in Rosebud Farmstand's favor on Plaintiff's Section 1981 claim.

SECTION 1981 – RETALIATION

8. The Court should enter judgment as a matter of law on Plaintiff's Section 1981 

retaliation claim. Plaintiff failed to demonstrate that Rosebud Farmstand made his work 

atmosphere intolerable after he complained about alleged racial harassment to justify his decision 

to quit. Six months after he filed his Charge. Plaintiff testified that after he filed his January 7, 

2008 Charge, the alleged racial harassment intensified and got "real bad." Plaintiff failed to offer 

any evidence beyond his own testimony to establish he allegedly was subjected to racial

harassment after January 2008 that was worse, different or retaliatory alleged in any way. As 

discussed above, Plaintiff testified alleged name calling started in 2003 on a daily basis. 

Plaintiff's witnesses, however, did not substantiate there was name calling at all in 2008 to 

which Plaintiff testified, let alone such activity allegedly intensifying. In fact, the evidence 

established the opposite. There was no evidence for 2008 that any of his witnesses heard 

anything except "take your ass back to Africa." Even if that evidence from Holloway is 

construed as true, it is insufficient to show any material change in his work environment for 

alleged complaining about harassment or filing a charge. It also is not sufficiently severe to show 
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hellish or intolerable conditions sufficient to justify Plaintiff's decision to quit. Plaintiff has not 

presented sufficient evidence to sustain a jury verdict for retaliation in violation of Section 1981.

WHEREFORE, Defendant Rosebud Farm, Inc. respectfully requests that the Court enter 

judgment as a matter of law in its favor and dismiss Counts I, III and VII of Plaintiff's 

Complaint.

Dated: December 11, 2015 Respectfully submitted,

/s/ Davi L. Hirsch 

JOSHUA D. HOLLEB (ARDC #6185409)

DAVI L. HIRSCH (ARDC #6182757)

KLEIN DUB & HOLLEB, LTD.

660 LaSalle Place, Suite 100

Highland Park, IL 60035

(847) 681-9100 phone

jdh@labor-law.com

dhirsch@labor-law.com

Attorneys for Defendants Rosebud Farmstand, Inc.

d/b/a Rosebud Farmstand, Carlos Castaneda, 

Roque Mendoza
CERTIFICATE OF SERVICE

The undersigned attorney certifies that a true and correct copy of the foregoing 

Defendant Rosebud Farm, Inc. d/b/a Rosebud Farmstand's Motion for Judgment as a

Matter of Law was served upon:

Joseph A. Longo

Longo and Associates, Ltd.

2100 West Haven

Mt. Prospect, IL 60056

via the Court's ECF system and hand-delivery in open court on December 11, 2015.

 /s/ Davi L. Hirsch