Alexander v. Casino Queen, Inc.
| Decision Date | 08 January 2014 |
| Docket Number | No. 12–3696.,12–3696. |
| Citation | 739 F.3d 972 |
| Parties | Stacy ALEXANDER and Kim Rogers, Plaintiffs–Appellants, v. CASINO QUEEN, INC., Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Kathryn E. Denner, Attorney, Chackes Carlson & Halquist, LLP, St. Louis, MO, for Plaintiffs–Appellants.
Garrett P. Hoerner, Attorney, Becker, Paulson, Hoerner & Thompson, Belleville, IL, for Defendant–Appellee.
Before FLAUM and HAMILTON, Circuit Judges, and KAPALA, District Judge.*
Stacy Alexander and Kim Rogers are African–American women who used to work as cocktail waitresses for Casino Queen, Inc. in East St. Louis, Illinois. They allege race discrimination, retaliation, and a hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court granted Casino Queen summary judgment on all three claims. We affirm as to the hostile work environment claim, but reverse and remand as to the race discrimination and retaliation claims.
Plaintiff Alexander worked at Casino Queen from 1993 until July 2010, when she began an extended medical leave of absence. Her employment ultimately ended in February 2012. Plaintiff Rogers worked at Casino Queen from 1994 through May 2010, when she voluntarily resigned. Both were cocktail waitresses for the duration of their employment; neither ever applied for a different position. Both were also members of a union and therefore subject to a collective bargaining agreement (“CBA”). This lawsuit is based on Alexander's experiences between October 11, 2007 and July 2010, and Rogers' experiences between October 11, 2007 and May 2010.1 Their allegations fall into three buckets: (1) floor reassignments, (2) discipline, and (3) privileges.
Plaintiffs' most significant allegation from a financial perspective concerns floor reassignments. At Casino Queen, a cocktail waitress made $7 to $8 per hour in salary—about $60 per day—and made $40 to $160 or more per day in tips. Tips thus comprised about 40% to 73% of a waitress's total compensation. Three to six cocktail waitresses worked the casino floor at any given time. Each waitress was assigned to cover a specific area of the casino floor (e.g., the blackjack tables, the penny slot machines, etc.). Plaintiffs state that waitresses usually did not receive large tips from patrons playing the “penny slots,” so that area of the casino floor was not a desirable assignment. By contrast, average tips were higher at the “high roller” tables, so that area was desirable. The waitresses periodically bid on shift assignments based on their seniority. By 2008, Alexander and Rogers were the second- and sixth-most senior waitresses, respectively, allowing them to win their preferred areas of the casino floor. On days when a waitress was absent or went home early, the remaining waitresses received new floor assignments, for that day only, to ensure that the casino floor was fully covered. Plaintiffs state that when these day-by-day reassignments occurred, Casino Queen “almost always” moved them to less lucrative areas of the floor, while white waitresses (often with less seniority) were reassigned to cover what had been the plaintiffs' desirable areas. Plaintiffs allege that these reassignments occurred up to twice per week and cost them about $50 per day.
For instance, Alexander alleges that in July 2009, she was removed from her lucrative table-game area on three consecutive days to cover for another waitress on medical leave. A less senior white waitress covered Alexander's area. Casino Queen replies that Kelly Carey, plaintiffs' supervisor, administered floor assignments “consistently pursuant to pre-arranged floor plans without regard to any particular waitress's race.” Carey, who is white, was a Food and Beverage Director.
Relatedly, Alexander also alleges that in late 2008, she bid for and received an area with dollar slot machines, which was considered a good-tip area. A few months later, though, the boundaries of her assigned area were redrawn (without conducting a rebid), and as a result, she lost the dollar slots and a white waitress received them.
Plaintiffs next allege that they were disciplined more harshly than their white colleagues with respect to tardies, absences, breaks, and eating at work. On both October 3 and November 3, 2008, Alexander claims that she was written up for being tardy when she was actually on time. (She asked the H.R. Director for copies of her time-clock records.) On November 6, Alexander was one minute late, and Casino Queen then suspended her for a day because of her three alleged tardies, resulting in a day of lost pay and tips. Rogers, too, was written up for being late on November 3, 2008, even though time records showed that she clocked in at 7:43 a.m. for her 7:45 a.m. shift. Plaintiffs say that a white cocktail waitress, Kim Lay, arrived late to work 42 times in an eleven-month period, according to Rogers' notes. In its brief, Casino Queen says that under the CBA, eight tardies in a rolling 12–month period results in an employee's suspension. Plaintiffs state that nine tardies in a rolling 12–month period results in termination. Kim Lay was still working at the casino when Rogers left in May 2010.
Plaintiffs also allege that when they arrived to work quite late—between one and 2.5 hours late—Kelly Carey did not allow them to work that day. That day counted as an “absence” and plaintiffs lost their base pay and tips. The situation was handled differently, however, when the cocktail waitress was white. For example, when Nicole Khoury was a “no call/no show”—i.e., she neither came to work nor notified Casino Queen of her absence—Casino Queen called her in to work (2.5 hours late) and she worked the rest of her shift. A “no call/no show” should result in automatic termination, plaintiffs say. Similarly, on July 13, 2009, Kim Lay allegedly was more than one hour late, but was allowed to work her shift.
On February 16 and 24, 2008, Alexander was written up for absences that should have counted as leave under the Family and Medical Leave Act of 1993. Casino Queen was supposed to remove the write-ups from her file, but did not; as a result, when Alexander received a third absence in October (due to a family emergency), Kelly Carey used the “three” absences to suspend and then fire Alexander. Alexander involved her union and was reinstated after missing seven days of work. She recovered her base pay for those seven days, but not the tips she would have earned.
On December 21, 2008, and again in April 2009, Carey wrote up Alexander for stopping at the restroom after her authorized lunch break before she returned to the casino floor. Alexander says that she saw white cocktail waitresses repeatedly do this; in fact, Alexander and Rogers allegedly saw white waitresses taking extended breaks with Carey, including at times that these waitresses were not scheduled for breaks. Carey also wrote up Rogers for spending too much time standing at the bar when Rogers was actually waiting to pick up drinks. In contrast, Rogers says that white waitresses, on several occasions, stood at the bar talking to each other or white bartenders for extended periods. On November 17, 2009, Rogers saw cocktail waitress Kim Lay talking on the casino floor to her boyfriend, who was also a casino employee. Carey allegedly walked by the couple twice before saying something to them.
On June 20, 2008, Rogers received a write-up for having food at her work area—a violation of company policy. When Rogers reported the write-up to the union representative, he told her that on the same day, a white cocktail waitress named Brandie was caught by management eating food at the bar. Brandie's food was taken away but she did not receive a write-up. Rogers saw white cocktail waitresses eating on the casino floor many times, including Corena Piatt on four specific dates in 2009; it is unclear, however, whether management saw these incidents.
Finally, in March 2010, Rogers told H.R. representative Kim Cushon (who is black) that she believed Carey was watching her more closely than white cocktail waitresses, for instance by following Rogers into the bathroom on multiple occasions. Rogers said that she thought Carey was harassing and retaliating against her. Cushon allegedly replied that it was Carey's “right” to single out Rogers.
Rogers alleges that Carey denied her requests for vacation or personal days without explanation, but routinely approved white cocktail waitresses' requests. In late May 2009, Carey allegedly denied Rogers' request for a day off the following Thursday. A few days later Carey approved the request of Michelle, a white cocktail waitress, for a day off the following Sunday. Plaintiffs state that Sundays were busier than Thursdays. In addition, in December 2008, Rogers' aunt died and she asked Carey for an emergency day off to attend the funeral. Carey denied this request. Several months later, Carey granted a white waitress's request for an emergency day off because a relative was threatening suicide.
Rogers says that on May 20, 2010, she attempted to give two weeks' notice that she was resigning; white cocktail waitresses such as Kim Turner, Kim Gann, and Brandie had publicly announced their resignations and then continued to work for two weeks afterward. But the day that Rogers gave two weeks' notice, Casino Queen's H.R. representative told Rogers not to come back to work. Rogers asked if she could revoke her notice and work two more weeks, but was told she could not. She reported to work the next day anyway, but Casino Queen security guards escorted her out of the casino. Rogers received her base pay for those two weeks, but not the tips she would have earned.
Plaintiffs protested Casino Queen's alleged discrimination, but to no avail. Rogers repeatedly lodged internal...
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