Bishop v. Harrah's Entertainment, Inc., No. 2:01 cv 574 (N.D. Ind. 6/12/2002)

• Decision Date: 12 June 2002
• Docket Number: No. 2:01 cv 574.,2:01 cv 574.
• Parties: PAULA BISHOP v. HARRAH'S ENTERTAINMENT, Inc., JOHN VOGELMEIER and LINDA UNDERWOOD.
• Court: U.S. District Court — Northern District of Indiana

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PAULA BISHOP v. HARRAH'S ENTERTAINMENT, Inc., JOHN VOGELMEIER and LINDA UNDERWOOD.

No. 2:01 cv 574.

United States District Court, N.D. Indiana, Hammond Division.

June 12, 2002.

ORDER

JAMES T. MOODY, District Judge.

Two motions are presently pending in the district court. Harrah's Entertainment, Inc. ("HEI") filed a summary judgment motion on November 13, 2001,¹ and a related "Motion to Strike Affidavit, Statement of Facts and Response of Plaintiff" on March 15, 2002.² For the reasons set forth below, the court GRANTS the summary judgment motion; the motion to strike is DENIED AS MOOT.

I. BACKGROUND

On Sunday May 7, 2000, Bishop and some of her co-workers staffed an event called the Taste of Northwest Indiana. (See Compl. at ¶ 8.) The shindig took place in the parking lot of the Radisson Star Plaza in Merrillville, Indiana. (See id.) It was conceived as part of an effort to promote the Harrah's Casino located in nearby East Chicago, Indiana. At the time, Bishop was working as a bartender at the casino. (See id.) At some point during that afternoon, Vogelmeier and Underwood apparently made sexual advances which Bishop spurned. (See id. at ¶¶ 15-16.) Vogelmeier and Underwood apparently persisted, and Bishop alleges they sexually assaulted her.

As a result, Bishop initiated administrative proceedings culminating in the issuance of a Notice of Right to Sue, dated July 20, 2001. (See id. at Ex. A.) Bishop then commenced this action, by filing her complaint on October 17, 2001, in which she interposed five causes-of-action. Count I alleges that HEI's "failure to take prompt and appropriate action" amounts to a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Id. at ¶ 37.) Count II alleges Vogelmeier and Underwood assaulted Bishop; Count III charges them with civil battery; Count IV claims they falsely imprisoned her; and Count V pleads the tort of intentional infliction of emotional distress. On Counts II through V (both inclusive), Bishop pursues vicarious liability against HEI. This court can exercise federal question jurisdiction over the Title VII claim, see 28 U.S.C. § 1331; and supplemental jurisdiction over the tort claims, see 28 U.S.C. § 1367.

II. LEGAL STANDARD

The adjudicatory standard is familiar. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). In disposing of a summary judgment motion, the district court generally draws from the facts all reasonable inferences in favor of the non-moving party. See Schroeder v. Hamilton School District, et al., 282 F.2d 946, 949 (7th Cir. Mar. 11, 2002). "The primary purpose of summary judgment is to dispose of claims that have no factual support, and therefore, the nonmovant must respond with affidavits or otherwise, "setting forth specific facts showing that there is a genuine issue for trial.'" Vukadinovich v. Bd. of School Ttees of N. Newton, 278 F.3d 693, 699 (7th Cir. 2002) (quoting FED.R.CIV.P. 56(e)); accord Albiero v. City of Kankakee, 246 F.3d 927, 928 (7th Cir. 2001). It is insufficient to hypothesize about a factual dispute. See Kuchenruether v. City of Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000). Rather, the nonmovant must offer "definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). Finally, in this District, the parties must organize the facts in a manner consistent with the governing local rule. See N.D.Ind. L.R 56.1.

III. DISCUSSION

HEI seeks summary judgment on all five counts. With regard to the Title VII claim, HEI argues it was not Bishop's employer during the relevant time period. In the alternative, HEI contends by failing to name HEI in the charge of discrimination she lodged with the Equal Employment Opportunity Commission ("EEOC"), Bishop did not exhaust the administrative remedies that act as a necessary precondition to a law suit in federal district court. With regard to the common law tort claims (Counts II through V), HEI argues it is not vicariously liable because it did not employ Vogelmeier and Underwood during the time period at issue in this action. Alternatively, HEI maintains even if Vogelmeier and Underwood were its employees, the alleged unwanted sexual advances (and subsequent sexual assault) were beyond the scope of the employment arrangement and therefore HEI is not vicariously liable.

A. Title VII Claim

HEI seeks summary judgment on Bishop's Title VII claim arguing that HEI never employed Bishop. In the alternative, HEI contends that Bishop did not exhaust the applicable administrative remedies with respect to HEI. The court finds summary judgment is appropriate on both grounds.

Title VII proscribes employment discrimination and provides a remedy for victimized employees. Claims under Title VII must be brought against the person or entity who was the employer at the time of the allegedly discriminatory event(s). See Musikiwamba v. ESSI, Inc., 760 F.2d 740, 748 (7th Cir. 1985) ("Title VII was enacted to regulate the employer/employee relationship with regard to discrimination in employment."). Thus, a person or entity is not liable under Title VII unless they employed the plaintiff during the pertinent time period.

HEI asserts it never employed Bishop and can not be held liable, as a matter of law, under Title VII. According to HEI, another entity, Showboat Marina Casino Partnership, d/b/a "Harrah's East Chicago Casino,"³ was Bishop's employer during the time period relevant in this litigation. In support of its position, HEI has produced the affidavit of Joseph A. Domenico. (See Def. Mem. at Ex. A ("Domenico Aff.").)

Domenico is competent to provide testimony on the issue of whether Bishop was employed by Showboat Partnership. He avers that he has "personal knowledge of the facts" contained in the Affidavit. (Id. at ¶ 1) More importantly, he is currently the Senior Vice President and General Manager of Showboat Partnership. (See id. at ¶ 2.) Showboat Partnership operates the Harrah's Casino located in East Chicago, Indiana. Toward that end, Showboat Partnership employs the requisite casino personnel, including bartenders. (See id. at ¶ 5 ("Ms. Bishop. . . w[as], in fact, employed only by Showboat [Partnership].").)

In opposition, Bishop contends "HEI is a proper party to the lawsuit as it is the employer." (Pl. Mem. at 2.) In an attempt to create a triable issue of fact, Bishop produces her own affidavit stating "I am currently employed by [HEI] and . . . I work as a bartender in the casino operated by [HEI]." (Pl. Mem. at Ex. A ("Bishop Aff."), ¶ 2.) The court notes that Bishop's current employment is not relevant here; the only question before the court is whether HEI (or Showboat Partnership) employed Bishop on the date of the unwanted sexual advances. Nevertheless, the court will assume that Bishop believes that HEI was her employer on the date of the incident that gave rise to this action. Bishop's affidavit alone is insufficient to overcome a summary judgment motion. See Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) ("It is well settled that conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact."). To get around this problem, Bishop has attached four other exhibits.

First, Bishop offers a document entitled "Direct Deposit Advice." (See Pl. Mem. at Ex. B.) It is seemingly a payroll receipt for direct deposit, apparently issued by an entity called "Harrah[']s Operating Company, Inc." Is this document even relevant? Perhaps not, because no date appears on it. Thus the court can only hazard a guess as to whether the receipt relates to a pay period including May 7, 2000, in which case the exhibit would have relevance. If the document relates to another pay period its relevance is suspect. Even if the court assumes it is relevant, its probative value weighs in favor of HEI. HEI is primarily proceeding under the theory that it was not Bishop's employer during the time period in question.⁴ The fact that a payroll receipt has printed upon it the name of an entity ("Harrah[']s Operating Company, Inc.") distinct from HEI, makes it more likely that a business entity other than HEI was Bishop's employer on May 7, 2000.

Next, Bishop produces a photocopy of the front-side of her identification badge for the year ending March 3, 2000. (See id. at Ex. C.) Printed on the badge are Bishop's photo, name ("Paula"), job title ("Bartender"), the validation dates, and the name "Harrah's East Chicago Casino." (Id.) "Harrah's East Chicago Casino" is the name under which Showboat Partnership was doing business at the time of the incident that gave rise to this litigation; the badge makes no reference to HEI. Thus, the identification badge, like the payroll receipt, lends no corroborative support to Bishop's assertion that HEI was her employer on May 7, 2000.

Bishop has also annexed selections from her Employee Handbook. (See id. at Ex. D ("Employee Handbook").) Page one announces the title of the document as "Harrah's East Chicago Casino: Employee Handbook." A footnote on that page refers to HEI; the court reprints here (pointing out that in the Employee Handbook, it appears in extremely small type, four-point or five-point):

The following trademarks used in this handbook are owned by [HEI]:

Harrah's The Better People Place

Bill's The Better People

Copyright 1998, [HEI]

(Employee Handbook at 1.) The title substantially supports HEI's position that Showboat Partnership was Bishop's employer. Bishop was issued a "Harrah's East Chicago Casino" handbook, which leads the court to conclude "Harrah's East Chicago Casino," which is merely a stage name for Showboat Partnership, was Bishop's employer at...