Ilinois, 361 F.3d 1021, 1028 (7" Cir. 2004)(stating that the court need not deal
separately with “identical claims for race-based harassment, discrimination, and
retaliation under Title VII and 42 U.S.C. § 1981" because Section 1981 claims are
“Section 1981 claims are evaluated under the same rubric as Title VII claims. . . .”);
Cerutti v. BASF Corp. 349 F.3d 1055, 1060-61 (7" Cir. 2003)(stating that McDonnel
Douglas burden-shifting analysis applies to claims of employment discrimination
brought under the ADEA, Title VII, and Section 1981.);O'Neal v. City of New
Albany, 293 F.3d 998, 1003 (indicating that the McDonnel Douglas burden-shifting
analysis is utilized for both Title VII claims and Section 1981 claims). For the
reasons stated above, we grant Boeing’s motion for summary judgment on the
discrimination claim and deny the motion for summary judgment on the retaliation

claim.

IV. Hostile Work Environment Claim

Boeing seeks summary judgment on the hostile work environment claim.
Under Title VII an employer is prohibited from maintaining a workplace that is
permeated with “discriminatory intimidation, ridicule, and insult” that is
“sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive work environment.” Harris v. Forklift Systems, Inc. 510 U.S.
17, 21 (1993)(quoting Meritor Savings Bank, FSB v. Vinson, 477 US. 57, 65-67

(1986)). Factors considered in determining whether there is a hostile work

13



summary judgment is not simply a “metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986).
Rather, a genuine issue of material fact exists when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson y. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596,
599 (7th Cir. 2000). The court must consider the record as a whole, in a light most
favorable to the non-moving party, and draw all reasonable inferences that favor the
non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co, 212
F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I. Title VII Discrimination Claim

Boeing is seeking summary judgment on the Title VII race and national origin
discrimination claims. If an employer in a Title VII discrimination case brings a
motion for summary judgment, the plaintiff can proceed under the direct or indirect
method of proof in order to defeat the motion. Pafford v. Herman, 148 F.3d 658,
665 (7th Cir. 1998). Santos argues that he can proceed under either the direct or

indirect method of proof.

A. Direct Method of Proof

Under the direct method of proof, the plaintiff can show through direct or


evidence doctrine, because Santos correctly points out that the 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 sought leave 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. It would be unfair to allow Boeing to thrust the defense into the action at
this juncture, thereby depriving Santos of the ability to conduct discovery relating to
the defense or address the merits of the defense in its brief. Also, even if Boeing had
properly plead the defense, Bowing has not pointed to sufficient evidence to warrant
a finding as a matter of law on the damages issue. Therefore, we deny Boeing’s

partial motion for summary judgment on damages.

CONCLUSION
Based on the foregoing analysis, we grant Boeing’s motion for summary
judgment on the discrimination claims. We deny Boeing’s motion for summary

judgment on the retaliation claims, the hostile work environment claim, and the

17


upon Boeing’s interpretation of the facts. Santos clearly contends that he did not
believe that either of the CAMs were justified. We will not draw inferences in favor
of Boeing, the non-movant, and cannot conclude that simply because Santos
challenged the issuance of a CAM that he was disrespectful or did not acknowledge
the admonitions made in the CAM or indicated that he would not comply with the
CAM. Boeing contends that after Santos received his CAM, Boeing received
numerous complaints from Santos’ co-workers and customers. Santos admits that
there were numerous complaints from management and his co-workers indicating
that Santos was difficult to work with and that Santos was working too slowly. (R
SF 82). However, there is evidence indicating that there were personal disputes with
various employees at Boeing and Boeing has not presented any evidence which
would indicate that Santos was the only employee complained about by his co-
workers. Santos denies that there were complaints from customers specifically about
him. Santos argues that the customer complaints were made against the mail room
department in general. Komendat stated in his deposition on the transcript page
cited by Santos that Komendat received complaints, but that the complaints were
general complaints about the mailroom. Boeing has not responded to Santos’
citation to to the transcript to explain a contrary interpretation for the evidence cited
by Santos. Patricia Johnson testified at her deposition that there were various
complaints from customers regarding the mailroom. (Johnson Dep. 89). Although

Johnson indicated that she recalled that “a couple” of complaints were specifically


derogatory comments about Santos’ race and national origin is sufficient to support
the direct method of proof. We disagree. Such evidence is not in itself sufficient to
create a triable issue that would warrant proceeding to trial. Santos also claims that
Richards told Santos that he was hired to meet the minority quota. However, Santos
suffered no adverse employment action in this regard and even if the statement was
true, it does not necessarily indicate discrimination to the extent necessary under the
direct method of proof. Therefore, we conclude that Santos cannot proceed under

the direct method of proof.

B. Indirect Method of Proof

Santos argues that he can also proceed under the indirect method of proof.
Under the indirect method of proof the plaintiff must establish aprima facie case
which will allow an inference of discrimination. Pafford, 148 F.3d at 665. To
establish a prima facie case of discrimination a plaintiff must show: “(1) that [h]e
was a member of a protected class; (2) that [h]e was performing h[is] job
satisfactorily; (3) that [h]e experienced an adverse employment action; and (4) that
similarly situated individuals were treated more favorably.” Traylor v. Brown, 295
F.3d 783, 788 (7th Cir. 2002). If aprima facie case is established then there is a
rebuttable presumption of discrimination and the employer is required to offer a
“legitimate, non-discriminatory reason for the adverse employment action.” Cianci

v. Pettibone Corp., 152 F.3d 723, 726 (7th Cir. 1998). If the employer provides such


circumstantial evidence that the alleged harmful action of the employer was
“motivated by an impermissible purpose, such as [his] race or national origin.” Jd.
However, a plaintiff cannot proceed under the direct method by merely pointing to
evidence that allows for an inference of discrimination. Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1397 (7" Cir. 1997). Rather a plaintiff is required
under the direct method to point to “enough evidence, whether direct or, more
commonly . . . circumstantial, to create a triable issue of whether the adverse
employment action of which he complains had a discriminatory motivation--whether
he was fired, or denied a promotion, or not hired, or paid less, because of the racial
or other protected group to which he belongs.” Id.; See also Oest v. Illinois Dept. of
Corrections, 240 F.3d 605, 612 (7" Cir. 2001)(stating that evidence to proceed under
the direct method of proof is usually a “smoking gun” remark by a supervisor or
some overt act of discrimination); Robin v. Espo Engineering Corp, 200 F.3d 1081,
1088 (7" Cir. 2000)stating that under the direct method of proof a plaintiff generally
must point to overt “smoking gun remarks indicating intentional discrimination. . .
.”). A plaintiff cannot proceed under the direct method based on comments made
long before the alleged adverse employment action or on comments “made by
individuals who had no involvement or influence over the decision making process
that led to” the plaintiff's termination. Cerutti v. BASF Corp., 349 F.3d 1055, 1066
(7" Cir. 2003).

Santos argues that the evidence indicating that Richards and Komendat made


FLSA claim. We also deny Boeing’s motion for partial summary judgement on

damages.

Sak D-- Yi

Samuel Der-Yeghiayan 7
United States District Court Judge

Dated: September 1, 2004

18


about Santos and that she did not recall any specific complaints about other workers,
such allegations are hardly the type of definitive statements that would resolve the
issue. Boeing cites to the deposition transcript of Gale Andrews (“Andrews”) to
support its assertion that customers complained about Santos. However, in the cited
portion, Andrews indicated that Santos’ co-workers complained about him. In
regards to other vague references to complaints from “other people” about Santos,
Andrews offers little more than what she claims to have heard as a rumor passed on
to her second or third hand. Andrews offers no concrete evidence that would
indicate that there were complaints about Santos from customers or that the
complaints were legitimate or that Santos was the only employee being complained
about by others. We find that Boeing has not provided sufficient evidence that
Santos was not performing his job satisfactorily.

Although, we find that Santos has established hisprima facie case, Santos has
not pointed to sufficient evidence on the pretext issue to defeat the motion for
summary judgment. Santos has pointed to evidence of some remarks by his
supervisors regarding his race and national origin. Boeing issued two CAMs to
Santos illustrating what Boeing perceived as his work deficiencies. Boeing also has
pointed to evidence of the perceptions by Santos’ co-workers and supervisors
regarding Santos’ behavior and work performance. Boeing has provided legitimate
non-discriminatory reasons for its actions against Santos. We need not address

whether the contentions in the CAMs were accurate because the pretext analysis is


* Minute Ordor Form (06/97)

United States District Court, Northern District of Illinois

Nenet seem yae [ Samus! Der-Vephiavan | Suns foue

CASE NUMBER 02 C 9310 DATE 9/1/2004
CASE Santos vs. Boeing
TITLE

{In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

a)

MOTION:

DOCKET ENTRY:

() Oo Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) Q Answer brief to motion due___. Reply to answer brief due__.

(C)) Qa Ruling/Hearingon____ssetfor___—_at

(5) i Status hearing{held/continued to] [set for/re-set for]on_——ssetfor__— saat,

(6) a Pretrial conference[held/continued to] [set for/re-set for]on___——s setfor_— ss aat_—

(7) o Trial[set for/re-set for]on__— saat

(8) ao [BenchyJury trial] [Hearing] held/continued to___at

(9) i This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) ClLocal Rule 41.1 OFRCP41(a)(1) CIFRCP41(a)(2).

do) of [Other docket entry] Status hearing held and continued to 09/14/04 at 9:00 a.m. to set a trial

schedule. For the reasons stated in the attached memorandum opinion, the Court hereby grants in part and
denies in part defendant’s motion for summary judgment. In the event the parties believe a settlement
conference with this Court would be useful, the parties are instructed to contact this Court’s Courtroom
Deputy. Enter Memorandum Opinion.

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices. Memorandum.
opinion distributed in open Court.

Mail AO 450 form.

Copy to judge/magistrate judge.

umber of notices

SEP 0 2 2004

date docketed

cml.

MW6

date mailed notice
courtroom,

deputy's
initials

Date/tifne-téceived in
central Clerk's Office realing deputy initials



Div., 281 F.3d 640, 644 (7" Cir. 2002)). Ifa plaintiff establishes aprima facie case
then the burden shifts to the defendant to produce a legitimate non-discriminatory
reason and if one is produced, the burden shifts back to the plaintiff to show that the
given reason is a pretext for discrimination. Id.

Santos claims that he was issued a CAM and eventually terminated in
retaliation for filing his Equal Employment Opportunity Commission (“EEOC”)
charge. Santos also claims that after he filed his EEOC complaint, his job
assignment was changed and his workload was increased in retaliation for the
complaint. Boeing argues only that Santos was not performing his job satisfactorily
and does not argue that Santos failed to meet any of the other requirements for his
retaliation claim. For the same reasons stated above we find that Boeing has not
pointed to sufficient evidence that Santos was not performing his job satisfactorily.
However, 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 by Boeing were a pretext for retaliation. Santos claims that when he
discussed filing a complaint with the EEOC Andrews told him: “Don’t expect
anyone to be nice to you if you go to the EEOC. . . [and] [d]o not think there is not a
price to pay for going to the EEOC.” (SAF 50). Santos also claims that he spoke
with Millie Weaver after filing the EEOC complaint, that Weaver told him that she
would not speak to Santos because he filed the complaint and that the EEOC would

not pursue Santos’ complaint, because Boeing had connections with the EEOC.

11



solely concerned with whether there was an intent to discriminate and the given
reason is a pretext. It is not dispositive whether or not the employer’s given reason
eventually proves to be accurate or sound. Grube v. Lau Industries, Inc. 257 F.3d
723, 730 (7" Cir. 2001). The plaintiff must point to sufficient evidence that the
employer lied. Jd. Santos has failed to do so in the instant action. Therefore, we

grant Boeing’s motion for summary judgment on the Title VII discrimination claim.

IL Title VII Retaliation Claim

Boeing seeks summary judgment on the Title VII retaliation claim. A
plaintiff can establish a prima facie case for retaliation under the direct or indirect
method of proof. Haywood y, Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.
2003). Under the direct method a plaintiff must “show that he engaged in statutorily
protected activity, that [the defendant] subjected him to an adverse employment
action, and that the two events had a causal connection.” Lang v. Illinois Dept. of
Children and Family Services, 361 F.3d 416, 418-19 (7 Cir. 2004). A plaintiff can
establish a prima facie case under the indirect method by showing that: 1) he
engaged in protected activity, 2) his job performance met the legitimate expectations
of his employer, 3) his employer took a materially adverse employment action
against him, and 4) he was treated less favorably than similarly situated employees
that did not engage in the protected activity. Hilt-Dyson v. City of Chicago, 282

F.3d 456, 465 (7" Cir. 2002)(citing Stone v. City of Indianapolis Pub. Utils. Div.

10



a reason, the plaintiff must then show that the reason alleged by the employer is
merely a pretext for discrimination. Jd.

Santos has pointed to similarly situated employees treated more favorably and
to adverse employment actions taken against him. Boeing argues that Santos has not
shown that he was performing his job satisfactorily during the period in question.
Santos received two employee corrective action memorandums (“CAM”) for
deficiencies in his work. However, Santos contends that the CAMs were part of the
discrimination against him. Boeing claims that Santos admits to criticizing the
performance of his co-workers. Boeing argues that Santos was not performing his
job satisfactorily because he did not get along with his co-workers and made
derogatory comments about his co-workers. However, according to Boeing’s own
statement of facts the animosities in the mail room were not solely the doing of
Santos. Boeing acknowledges in its own statement of facts that all the workers in
the mail room were having difficulties working together because of personal
animosities. (SF 26, 27, 38, 39).

Boeing also claims that Santos told lies about his co-workers and Boeing cites
in support of its assertion statement of facts number 45 and 46. However, those facts
fails to show a lie on Santos’ part and, to the extent that they indicate possible
deception, there is a genuine issue of fact as to the veracity of the facts alleged by
Boeing. Boeing also argues that when Santos was given his first CAM, Santos

refused to take responsibility for his conduct. However, such a conclusion is based


Il), Title VII 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 et seg. (Count VI), 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).

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). In seeking a grant of summary judgment the moving party must
identify “those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case.”/d. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations in the pleadings, but, “by affidavits or as otherwise provided for in
[Rule 56], must set forth specific facts showing that there is a genuine issue for

trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a motion for


environment include: 1) the “frequency of discriminatory conduct,” 2) “its severity,”
3) whether conduct is “physically threatening or humiliating” or merely offensive, 4)
whether conduct “unreasonably interferes with [the plaintiff's] work performance,”
and 5) the “social context in which events occurred.” Hilt-Dyson v. City of Chicago,
282 F.3d 456, 463 (7th Cir. 2002). An employer is “strictly liable for harassment
inflicted by supervisors, subject to an affirmative defense when the harassment does
not result in a tangible employment action.” Williams v. Waste Management of
Illinois, 361 F.3d 1021, 1029 (7 Cir. 2004). If a plaintiff contends that “coworkers
alone were responsible for creating a hostile work environment, he must show that
his employer has ‘been negligent either in discovering or remedying the
harassment.”” Id.

Considering all of the evidence presented by Santos regarding the statements
of conduct by Richards, Komendat, and Delelio, we find that there is sufficient
evidence of conduct that was severe and pervasive. Santos also makes allegations
against Delelio regarding perceived physical threats to his safety. We find that there
is sufficient evidence in support of a hostile work environment to warrant proceeding
to trial. Even if we could separate the alleged harassment by Delelio from that of
Santos’ supervisors, Boeing makes no arguments concerning whether or not it was
negligent in preventing the alleged harassment by Delelio. Therefore, we deny

Boeing’s motion for summary judgment on the hostile work environment claim.

14


Santos’ overtime. (SAF 125). Komendat denies that he was aware that Santos had
been working overtime. Thus, there is a legitimately disputed issue that must be
resolved by the trier of fact and we deny Boeing’s motion for summary judgment on

the FLSA claim.

VL After-Acquired Evidence Doctrine

Boeing also seeks partial summary judgment on the issue of damages. Boeing
argues that the amount of damages should be limited by the after-acquired evidence
doctrine. The court in McKennon addressed the after-acquired evidence doctrine
and held that if an employer “discovers information that would have otherwise
disqualified the plaintiff from employment” and “would have led to her termination,
but was not discovered until after she was fired and litigation ensued,” the
information cannot be a basis to defeat the plaintiff's discrimination claim. O'Neal ,
293 F.3d at 1003-04. However, such “after-acquired evidence” is relevant in
determining what remedies are available to the plaintiff. Jd.; see also Dvorak v.
Mostardi Platt Associates, Inc. 289 F.3d 479, 485-86 (7" Cir. 2002)(stating that
under the doctrine “after-acquired evidence may be considered in the determination
of the proper remedy for an unlawful act, and typically, back pay may run only from
the date of the unlawful discharge until the date the employer would have terminated
the employee based on the later evidence.”).

We need not address Boeing’s arguments regarding the after-acquired

16



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.

Santos’ second amended complaint contains a hostile work environment claim

alleging violations of 42 U.S.C.§ 2000e et seg. (“Title VII”) (Count I), a race

discrimination claim alleging violations of 42 U.S.C.§ 1981 (“Section 1981")(Count


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

EASTERN DIVISION
MICHAEL SANTOS, )
)
Plaintiff, )
)
v. ) No. 02 C 9310
a
THE BOEING COMPANY, ) Uner,
) SEP 4 7)
Defendant. ) 2 2004
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant The Boeing Company’s
(“Boeing”) motion for summary judgment. For the reasons stated below, we grant

the motion in part and deny the motion in part.

BACKGROUND
Plaintiff Michael Santos (“Santos”) worked for Boeing as a Mailroom
Specialist in its Chicago, Illinois office between September 17, 2001, and October
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


(SAF 90). Boeing’s only response to the above allegations is a denial that they are
accurate. The accuracy of Santos’ allegations must be evaluated by the trier of fact.
We find that there are legitimately disputed facts regarding the retaliation claim and

deny Boeing’s motion for summary judgment on the retaliation claim.

Il]. Section 1981] Claims
Boeing seeks summary judgment on the Section 1983 claim. Section 1981
states as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a). For a Section 1981 claim a plaintiff must prove the existence
of a contract. Gonzalez v. Ingersoll Mill. Mach. Co, 133 F.3d 1025, 1034 (7" Cir.
1998). However, an implied contract may suffice and the Seventh Circuit has
acknowledged that a Section 1981 claim may be based on the existence of an at-will
employment relationship. Walker v. Abbott Laboratories, 340 F.3d 471, 478 (7 Cir.
2003). The evidence indicating that Santos had an at-will employment relationship
with Boeing will suffice in this regard. We need not address the remaining
requirements for Santos because the analysis would be the same as that for the Title

VII discrimination and retaliation claims. See Williams v. Waste Management of

12


V. Fair Labor Standards Act Claim

Boeing seeks summary judgment on the FLSA claim. Santos claims that
Boeing failed to pay him overtime in accordance with the requirements of the FLSA.
The FLSA states in part as follows:

Except as otherwise provided in this section, no employer shall employ any of
his employees who in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an enterprise engaged in
commerce or in the production of goods for commerce, for a workweek longer
than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one
and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1). An employer can only be liable for not paying overtime in
accordance with the FLSA if the employer “knew, either actually or constructively,
that [the plaintiff] was working overtime.” Cunningham v. Gibson Elec. Co., Inc,
43 F.Supp.2d 965, 975 (N.D. Ill. 1999). Boeing argues that Santos never informed
Boeing of the alleged overtime and that Boeing cannot be held responsible for the
hours if not informed of them. Santos contends that he was allowed to work
overtime by his supervisors. Boeing acknowledges that supervisors may allow
workers to work overtime. Santos claims that he frequently worked past his
scheduled quit time to handle the last-minute outgoing packages from Boeing
personnel. (SAF 124). Santos claims that he understood that he was required to
work the overtime and complete the package assignment. Santos claims that

Komendat would regularly see Santos working overtime and was thus aware of

15