Riley–jackson v. Casino Queen Inc.

• Decision Date: 27 February 2011
• Docket Number: Case No. 07–CV–0631–MJR.
• Parties: Erika Renee RILEY–JACKSON, et al., Plaintiffs,v.CASINO QUEEN, INC., a corporation, Defendant.
• Court: U.S. District Court — Southern District of Illinois

776 F.Supp.2d 815

Erika Renee RILEY–JACKSON, et al., Plaintiffs,

v.CASINO QUEEN, INC., a corporation, Defendant.

Case No. 07–CV–0631–MJR.

United States District Court, S.D. Illinois.

Feb. 27, 2011.

Laura E. Craft, Mark S. Schuver, David A. Gusewelle, Mathis, Marifian & Richter, Ltd., Generally Admitted, Michael L. McGlynn, Stephen P. McGlynn, McGlynn & McGlynn, Belleville, IL, for Plaintiffs.

MEMORANDUM AND ORDER

(Denying Doc. 137 the Casino Queen's motion for summary judgment as to Lawrence Burton)

REAGAN, District Judge:I. Introduction

On September 4, 2007, Lawrence Burton (“Burton”) was among the 20 original plaintiffs who brought this action against his employer, Casino Queen, Inc. (“Casino Queen”). Burton's complaint is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and 42 U.S.C. § 1981, and alleges that the Casino Queen discriminated against him because of his race, African–American, during his employment at the Casino Queen, from June 1993 through the present time. Specifically, Burton's complaint asserts two counts (Counts 8 and 64) against the Casino Queen: (1) unlawful racial discrimination, harassment and hostile work environment, in violation of Title VII; and (2) deprivation of his right to the enjoyment of all benefits, privileges, terms and conditions of his employment contract “as are enjoyed by white citizens,” in violation of § 1981. Now before the Court is the Casino Queen's summary judgment motion and memorandum, filed July 2, 2010 (Doc. 137), which is fully briefed and ready for disposition.

II. Factual Background

Burton is an African–American male who has been employed in the Food and Beverage Department of the Casino Queen since 1995. Burton was originally hired as a barback and was promoted to bartender in 1997. As of the time of his deposition, Burton was still employed by the Casino Queen and a member of Union Local # 74. On June 15, 2006, Burton filed a discrimination charge with the EEOC.¹ A notice of right to sue was issued by the EEOC on or about June 4, 2007.

Burton alleges that the Casino Queen subjected African–American employees to racial discrimination and a hostile work environment. Burton testified that supervisors would talk to white employees but would not speak to African–American employees. Burton stated that African–American employees were drug tested if management believed they came to work under the influence of drugs or alcohol, while recalling specific instances where white employees, who were obviously intoxicated, were only sent home to sleep it off. Burton testified to specific racist remarks made by Danny Ramsey (“Ramsey”), a white bartender, and a white security guard. Burton stated that he reported one of the Ramsey incidents, but Ramsey was not disciplined.

Burton alleges that white bartenders were given special privileges and favorable treatment. He testified that Kelly Carey, a white supervisor, would require black bartenders to begin work immediately at the start of their shifts but allowed white bartenders to sit in the office and smoke with her. Burton stated that he was written up for losing a ticket that needed to be corrected; however, white supervisors, Monica Byrd (“Byrd”) and Julie, would falsify drink receipts for white bartenders. Burton testified that he received a write-up for leaving his bank in the cash register at Club Sevens; however, a white bartender took his bank to a local bar and then brought it back without being similarly disciplined. Burton further testified that he was written up for an $81.00 register shortage and served a one-day suspension, but the white barback who was working on the same register was not suspended.

Burton alleges a wide variety of acts of racial discrimination by Julie, a white supervisor. Specifically, he testified that Julie would leave the office door open and watch black employees clock in and out, but would not do the same with white employees. Burton testified that Ronnie Moore, a black bartender, was written up for leaving five minutes early, but several white bartenders were not written up when they left thirty minutes early. Burton stated that he was repeatedly written up for not signing out; however, Julie would simply tell white bartenders that she would take care of it when they forgot to sign out.

Burton also makes a failure to promote claim. He does not claim that he has applied for a promotion and was passed over. Rather, he contends that the Casino Queen generally failed to post jobs, and the failure to post the jobs was an act of discrimination.

The Casino Queen contends that Burton has not been subjected to racial discrimination or a racially hostile work environment. It presents 42 Employee Warning Notices that Burton received for violating various company policies during his employment. It claims that Burton did not bid on any new position that opened or express interest in a promotion. The Casino Queen also insists that Burton failed to report any allegation of racial discrimination to human resources, his supervisor or his union representative ² at any point during his employment. On these grounds, the Casino Queen asserts that Burton has not presented evidence of discrimination or a racially-hostile work environment.

III. Legal Standard Governing Summary Judgment Motions

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Krieg v. Seybold, 481 F.3d 512, 516 (7th Cir.2007)). Accord Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir.2008).

In ruling on a summary judgment motion, this district court must view the evidence and all inferences reasonably drawn from the evidence in the light most favorable to the non-moving party. TAS Distributing Co., Inc. v. Cummins Engine Co., 491 F.3d 625, 630 (7th Cir.2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir.2007).

The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 996 (7th Cir.2002). To successfully oppose summary judgment, the nonmovant must present definite, competent evidence in rebuttal. Vukadinovich v. Board of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir.2002). A non-moving party may submit excerpts of his own deposition as “affirmative evidence to defeat summary judgment,” Williams v. Seniff, 342 F.3d 774, 785 (7th Cir.2003), and a plaintiff may present an affidavit relating facts of which he has personal knowledge to support a discrimination claim. Volovsek v. Wisc. Dep't of Agriculture, Trade and Consumer Protection, 344 F.3d 680, 690 (7th Cir.2003).

IV. AnalysisA. Procedural posture and four-year statute of limitations on § 1981 claims

Burton filed a charge of discrimination with the EEOC on June 15, 2006. Accordingly, any of Burton's claims that fall within the 300–day period between August 19, 2005, and June 15, 2006, are actionable under Title VII. Additionally, acts contributing to the claim that occurred outside of the 300–day period may also be actionable under the analysis set forth by United States Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). There, the Court held, “[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” 536 U.S. at 117, 120–21, 122 S.Ct. 2061. As a result, Burton may obtain relief for other time-barred acts by linking them to acts which are within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992).

In Selan, the Seventh Circuit explained that “[f]or purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period.” Id. The Court discussed three viable continuing violation theories: (1) cases involving hiring or promotion practices where the employer's decision-making process took place over a period of time so that it was difficult to pinpoint the exact day the “violation” occurred; (2) cases in which the employer has an express and open policy that is alleged to be discriminatory; and (3) cases in which the plaintiff charges that the employer has followed a covert practice of discrimination-this theory is sometimes referred to as a “pattern of ongoing discrimination” or “serial violation.” Id. at 564–65 (citations omitted). Of these three continuing violation theories, the first and third theories may be applicable to this case. The Court concludes, on the current record, that Burton's claims of discrimination and hostile work environment may be considered under the continuing violation theory.

As to acts which occurred after Burton's EEOC filing, courts have found that a requirement that any post-charge claims go through a second EEOC filing procedure would not further the purpose of providing notice to the employer and an opportunity for conciliation.³ See E.E.O.C. v. Custom Companies, Inc., 2004 WL 765891, at *12 (citing McDonald v. United Air Lines, Inc., 587 F.2d 357, 361 (7th Cir.1979); Levine v. Bryant, 700 F.Supp. 949, 957 (N.D.Ill.1988); Horton v. Jackson County Bd. of Com'rs, 343 F.3d 897, 899 (7th Cir.2003)). Thus, requiring Burton to file an additional EEOC charge for acts that occurred after his original EEOC filing would merely lead to an “increased burden for both the EEOC and the employer.” Id.

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