CONCLUSION
Based on the foregoing analysis, we deny Boeing’s motion for reconsideration

and we deny Boeing’s motions in limine without prejudice. Boeing is given until
November 10, 2004, to file new motions in limine and the answers will be due by
November 17, 2004. Also, we find it prudent to strike the pre-trial conference set for

November 4, 2004, and reschedule it for November 22, 2004, at 10:30 a.m.

Samuel Der-Yeghiayan i 5 i)

United States District Court Judge

Dated: November 4, 2004


B. Retaliation Claim

Boeing complains in its reply that Santos improperly argued in his answer
“that his retaliation claim should remain an issue for trial.” (Reply 1). Boeing
contends that the retaliation claim is no longer at issue because “this Court found
that Plaintiff's termination was based on a legitimate, non-discriminatory reason and
that Plaintiff failed to show that the reasons given were a pretext.” (Reply 1). The
court, however, explicitly found the opposite to be true in its prior ruling in regards
to the retaliation claim. In our prior ruling we specifically held that “unlike the Title
VII discrimination claim, Santos has pointed to sufficient evidence for a reasonable
trier of fact to find that the given reasons for employment actions taken by Boeing
were a pretext for retaliation.” (9/1/04 Ruling 11). We also stated very clearly: “We
find that there are legitimately disputed facts regarding the retaliation claim and
deny Boeing’s motion for summary judgment on the retaliation claim.” (9/1/04
Ruling 12).

Boeing also argues that this court improperly considered statements made by
Gale Andrews (“Andrews”) and Millie Weaver (“Weaver”) because they were not
decision-makers at Boeing. (Recon. 1-2). Boeing complains that in regards to the
retaliation claim, this court cited Cerutti v. BASF Corp., 349 F.3d 1055, 1066 (7"
Cir. 2003), for the premise that “a plaintiff cannot proceed under the direct method

based on comments made long before the alleged adverse employment action or on


example, Santos contended that “Delelio often erupted in violent fits of rage in
which he would scream, throw [sic] and make threats.” (SAF 27). Thus, Boeing’s
arguments that rely on three isolated comments by Delelio are not consistent with

the record in this case.

It was Boeing’s burden as the movant to address the pertinent case law and to
show that summary judgment was warranted on the hostile work environment claim.
Boeing failed to even address whether or not the Delelio conduct should be
considered as a contributing factor to the hostile work environment. Boeing also
now argues that since this court dismissed the negligent retention claim that this
issue was resolved. However, the negligent retention claim involved separate case
law and the issues and findings regarding a negligent retention claim and those

associated with a hostile work environment claim are not synonymous.

D. After-Acquired Evidence Doctrine

Boeing also inserts a section at the end of its motion for reconsideration in
which it asks for “clarification from the court with regard to its ruling on the after-
acquired evidence doctrine.” (Recon. 5). First of all, the proper procedural manner
to present such an argument would be to file a motion for clarification rather than to
append the argument to the end of a motion for reconsideration. However, in the
interest of expediting these proceedings we shall address the arguments on the issue

presented by Boeing.


pertinent decisions at issue.

Boeing also argues that this court should have considered the temporal gap
between alleged misconduct and Santos’ termination and that Santos has not met his
burden of showing a “causal connection.” (Recon. 2). However, Boeing again fails
to recognize that we found that Santos was able to proceed under the indirect method
of proof rather than the direct method of proof. No showing of a causal connection
is required for the analysis under the indirect method of proof. Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 465 (7" Cir. 2002). At one time in the Seventh Circuit there
was such a causal connection prong for the indirect method of proof for a retaliation
claim, but those cases are no longer good law. See Stone v. City of Indianapolis
Public Utilities Div., 281 F.3d 640, 643 (7" Cir. 2002)(explaining that the causal
link is no longer required under the indirect method). Boeing also cites Oest v.
Illinois Dept. of Corrections, 240 F.3d 605 (7" Cir. 2001) and E.E.0.C. v. Yellow
Freight System, Inc., 253 F.3d 943 (7° Cir. 2001) in its arguments pertaining to the
retaliation claim. (Recon. 2). However, both of the cases were decided prior to

Stone which changed the indirect method of proof for retaliation claims.

C. Hostile Work Environment Claim

Boeing argues that there is not sufficient evidence to support the hostile work
environment claim. Boeing first argues that this court erred in denying summary

judgment on the hostile work environment claim because this court “found that


comments ‘made by individuals who had no involvement or influence over the
decision making process that led to’ the plaintiffs termination.” (Recon. 1-2).
However, a review of our prior ruling shows that Boeing’s reference to sentences by
the court is out of context.

First of all the section of our prior ruling that Boeing is referring to and has
cited is the section devoted to the Title VII discrimination claim rather than the
retaliation claim. Secondly, as we indicated in our prior ruling, in order to defeat a
motion for summary judgment on a Title VII claim a plaintiff can proceed under the
direct or indirect method of proof. Haywood vy. Lucent Techs., Inc. 323 F.3d 524,
531 (7th Cir. 2003). In our prior ruling, in the section devoted to the retaliation
claim, we found that Santos was able to establish a prima facie case under the
indirect method of proof rather than the direct method of proof. (9/1/04 Ruling 11).
We addressed for instance in that section of our ruling whether or not Santos was
performing his job satisfactorily, which is part of a prima facie case under the
indirect method of proof and we discussed the pretext issue. /d. Thus, Boeing’s
reference to Cerutti v. BASF Corp. is entirely misplaced as it refers specifically to
the direct method of proof. 349 F.3d at 1066(following the above quote with the
statement that the “comments cannot be used by the plaintiffs to support claims of
race or national origin discrimination under the direct method.”). Also, regardless,
there was sufficient evidence to make a reasonable inference that Andrews’ and

Weaver’s statements were indicative of Boeing’s motivations when making the



controlling precedent. The case is an Eight Circuit case that consists of nothing

more than persuasive authority and, even according to Boeing, the case merely has

similar facts.

Next Boeing complains that Delelio’s conduct did not contribute to the hostile
work environment. Boeing’s arguments concerning the hostile work environment
claim are based on Boeing’s contention that the only alleged misconduct by Delelio
was limited to “three comments with regard to Plaintiffs national origin.” (Recon.
3). Boeing is mistaken. Boeing is not entitled to summary judgment simply
because it refuses to acknowledge the existence of the opposing side’s allegations of
misconduct that create legitimately disputed issues. As we indicated in our prior
ruling, Santos contends, among other things, that ““Delelio threw items across the
mailroom, kicked furniture, and screamed and shouted at Santos and other co-
workers.” (9/1/04 Ruling 2). Santos claims that he informed Richards and Dave
Komendat about the tantrums, but that nothing was done to stop them. /d. Santos
also alleges that in January of 2002, Santos “again reported Delelio’s conduct after
Delelio became enraged and began yelling at Santos” and that “after Delelio hung up
the telephone, he yelled at Santos and turned and allegedly grabbed for a box cutter”
at which time Santos ran out of the mailroom in fear for his safety. /d. Boeing
acknowledged itself in its statement of material facts, that the allegations against
Delelio consisted of more than three comments. See e.g. (SF 104-106). Santos also

made his allegations clear in briefs such as his statement of additional facts. For


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

EASTERN DIVISION
MICHAEL SANTOS, )
Plaintiff,
v. } No. 02 C 9310
THE BOEING COMPANY,
Defendant. }

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant The Boeing Company’s
(“Boeing”) motion for reconsideration of this court’s ruling on September 1, 2004,
granting in part and denying in part Boeing’s motion for summary judgment. This
matter is also before the court on the parties’ motions in limine. For the reasons
stated below, we deny the motion for reconsideration. We also deny all of Boeing’s

motions in limine without prejudice.

BACKGROUND
Plaintiff Michael Santos (“Santos”) worked for Boeing as a Mailroom

Specialist in its Chicago, Illinois office between September 17, 2001, and October


defense.” (Recon. 5). Santos vehemently denies that it has been given the

opportunity to conduct discovery on the issue and requests that if this court were to

allow Boeing to proceed with the defense that discovery be re-opened. (Ans. 9).

Boeing also argues that any issue of discovery “can be fully remedied before
trial.” (Recon. 6). However, conducting further discovery at this late stage of the
proceedings is not acceptable to the court and would not be fair to Santos. We have
a duty to see that these proceedings proceed in an efficient and orderly manner and
we must ensure that all of our cases proceed to a resolution. We will not reopen
discovery and further delay this case and Boeing has not provided sufficient

justification to reopen discovery at this late stage of the proceedings.

Also, we need not entertain Boeing’s motion for clarification regarding the
presentation of the after-acquired evidence defense at trial because Boeing has no
pending motion for leave to amend its answer to the complaint, which is a necessary
step to avoid waiver. We stated in our motion for summary judgment that Boeing
would not be allowed to amend its answer to the complaint because of its untimely

nature.

IL. Motions In Limine

The parties have each filed their motions in limine. Boeing’s motions in

limine are deficient for a variety of reasons. First of all, Boeing asserts in its in

12


In its motion for summary judgment, Boeing argued that the amount of
damages should be limited by the after-acquired evidence doctrine. In our prior
ruling we denied the partial motion for summary judgment on damages because the
after-acquired evidence doctrine is an affirmative defense and Boeing failed to plead
the defense in its answer to the second amended complaint. See Jones v. Board of
Trustees of Community College Dist. No. 508 75 F.Supp.2d 885, 887 (N.D. Ill.
1999)(finding that the doctrine is an affirmative defense and that defendant “waived
the after-acquired evidence defense by not raising it in the pleadings.”). Boeing
attempted to amend its answer to Santos’ second amended complaint, to include the
affirmative defense, but only after discovery was completed and Boeing’s summary
judgment motion was briefed by Santos. We stated in our prior ruling that it would
be unfair to allow Boeing to present the defense at the dispositive motion stage of
the proceedings, thereby denying Santos the opportunity to conduct discovery
relating to the defense. (9/1/04 Ruling 17). Boeing has filed a proposed amendment
to its answer to the amended complaint and an amended answer to the amended

complaint, but there is no pending motion for leave to file an amended answer.

Boeing now asks whether or not it can proceed at trial with this defense
despite our prior ruling. Boeing first contends that “discovery has been conducted
by Plaintiff on this issue.” (Recon. 5). Boeing further acknowledges that the only
discovery that is possibly related to the issue is one interrogatory posed by Santos

that Boeing contends shows that Santos “clearly anticipated and acknowledged the

11


Plaintiff had not established direct evidence of discrimination.” (Recon. 2). Boeing
cites page six of our prior ruling to support its position. On page six of our prior
opinion, as is clearly indicated by our headings, and by our discussion in the text, we
were addressing the direct method of proof for the Title VII discrimination claim.
We specifically began addressing the hostile work environment claim on page
thirteen of the memorandum opinion. In addition, the analysis for a hostile work
environment claim is separate from a discrimination claim which utilizes the
McDonnell Douglas burden shifting approach. See Hilt-Dyson, 282 F.3d at 462-63,
465(explaining the different analysis for a hostile work environment claim and a
retaliation claim). We also note that Boeing contends that Santos did not establish
“direct evidence” of retaliation. However, even under the direct evidence method
circumstantial evidence may also be considered. Pafford v. Herman, 148 F.3d 658,

665 (7th Cir. 1998).

Boeing next cites Jackson v. Flint Ink North American Corp, 370 F.3d 791
(8" Cir. 2004) which is a case involving a hostile work environment claim and
Boeing devotes a portion of its motion for reconsideration to explaining why the
instant case is similar to Jackson and explaining why we should follow that case
cited by Boeing and reconsider our prior ruling. As indicated above, motions for
reconsideration are reserved for pointing out manifest errors of law. Caisse
Nationale de Credit Agricole, 90 F.3d at 1270. However, Jackson upon which

Boeing places so much reliance on in its motion for reconsideration is not even



prior occasion. /d.

DISCUSSION

I. Motion for Reconsideration

A. Improper Reliance on Rule 59(e)

Boeing’s entire motion for reconsideration is improperly premised on Federal
Rule of Civil Procedure 59(e). Rule 59(e) only applies when a party seeks the
reconsideration of a ruling that was accompanied with a final judgment. See Fed. R.
Civ. P. 59(e)(explaining that the section addresses a “motion to alter or amend a
judgment”); Crestview Village Apartments v. U.S. Dept. of Hous. and Urban
Develop., 383 F.3d 552, 558 (7" Cir. 2004)(explaining that “[a]fter final judgment
has been entered, a plaintiff may amend with leave of the court following a motion
to set aside the judgment under Rule 59(e) or Rule 60(b).”); U.S. v. Olsen, 2001 WL
817854, at *2 (N.D. Ill. 2001)(explaining that the defendant was “correct that neither
Rule 59(e) nor Rule 60(b) appl[ied] . . . because the ruling did not dispose of the
entire case and the court did not enter a final judgment.”). No final judgment has
been entered against Boeing thus far in the instant action and thus Boeing’s
reference to Rule 59(e) is improper. The proper legal standard for a motion for

reconsideration at the instant juncture is stated above.



Santos’ second amended complaint contains a hostile work environment claim
alleging violations of 42 U.S.C.§ 2000e ef seq. (“Title VII”) (Count I), a race
discrimination claim alleging violations of 42 U.S.C.§ 1981 (“Section 1981")(Count
Il), Title VI retaliation claims (Counts III, IX, and X), Section 1981 retaliation
claims (Counts IV and V), a Fair Labor Standards Act (“FLSA”) claim, 29 U.S.C.§
201 ef seq. (Count V1), a negligent retention claim (Count VII), and a Title VII race
and national origin claim (Count VIII). On May 10, 2004, we granted Boeing’s
motion to dismiss the negligent retention claim (Count VII). Boeing filed a motion
for summary judgment and on September 1, 2004, we granted Boeing’s motion for
summary judgment on the discrimination claims, denied Boeing’s motion for
summary judgment on the retaliation claims, the hostile work environment claim,
and the FLSA claim. We also denied Boeing’s motion for partial summary judgment
on damages. Boeing has now filed a motion for reconsideration in regards to the

September | rulings. The parties have also filed motions in limine.

LEGAL STANDARD
A motion for reconsideration may be brought “to correct manifest errors of
law or fact or to present newly discovered evidence.” Caisse Nationale de Credit
Agricole v. CBI Indus., 90 F.3d 1264, 1269-70 (7° Cir. 1996), Such motions cannot
be used as a “vehicle to produce new evidence that could have been” produced

earlier or as a vehicle to “rehash{]” the same arguments presented to the court on a



21, 2002. Steve Richards (“Richards”) was the direct supervisor for Santos and one

of Santos’ co-workers was Bob Delelio (‘‘Delelio”). Santos alleges that Richards
and Delelio made comments regarding his racial and national origin. Santos
complained about the comments to Boeing supervisors and Santos claims that
Boeing retaliated against Santos by demoting him from the lead mailroom position
and taking away his office. Santos also claims that Boeing ultimately terminated
him because of his race and national origin.

In addition, Santos claims that Boeing failed to protect its employees,
including Santos, from the alleged fits of rage by Delelio at work. Santos claims that
Delelio threw items across the mailroom, kicked furniture, and screamed and
shouted at Santos and other co-workers. Santos claims that he informed Richards
that he feared for his physical safety around Delelio, but Richards ignored Santos’
complaints. In December of 2001, Santos complained about Delelio’s alleged
tantrums to Dave Komendat (“Komendat”), Boeing’s Director of Security. Santos
claims that Komendat assured Santos that he would investigate the matter, but that
Boeing did not conduct any investigation. Around January 15, 2002, Santos once
again reported Delelio’s conduct after Delelio became enraged and began yelling at
Santos. Santos claims that Delelio received a telephone call, apparently regarding
Santos’ complaint, and after Delelio hung up the telephone, he yelled at Santos and
turned and allegedly grabbed for a box cutter. Santos claims that he feared that

Delelio would use the knife to harm him and ran out of the mailroom.


limine brief that it has one “motion in limine.” In actuality, Boeing refers in its in

limine brief to twenty-two different motions in limine. Boeing argues that it has
only one motion in limine because Boeing has combined all twenty-two motions in
limine into one eight-page long run-on sentence. Santos, however, properly broke
down each of its motions in limine and provided separate memorandums to explain
the legal bases for his positions. Boeing’s in limine requests consist of short
portions of sentences laid out in the most conclusory fashion. Boeing fails to
provide any detailed elaboration for any of its positions and for some of its requests,
it fails to provide any explanation at all for its position. For example, in paragraph
13 of Boeing’s “motion in limine” Boeing asks the court to bar “[a]ny reference to
assertions made by Plaintiff in his letter to Kathleen Leaver of the Equal
Employment Opportunity Commission of [sic] March 6/7, 2003, unless used for
impeachment purposes.” (D. Mot. In Lim. Par. 12). Boeing does not provide any
further statement in regards to the request and fails to provide any reason for its

contention that references to the letter should be barred.

Therefore, we deny all of Boeing’s motions in limine without prejudice. We
shall give Boeing until November 10, 2004, to refile its in limine motions. The
answers to the motions will be due on November 17, 2004. If Boeing decides to file
a motion in limine it must file a separate brief for each motion. Boeing must also

provide a detailed legal basis for its position in regards to each motion in limine.

13