The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION DENYING DEFENDANT CHAMPION
EXPOSITION SERVICES INC.'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Curtis Jones is an African-American union carpenter who works
in the trade show business. He filed this action on August 30, 2002, and
is proceeding pro se. Although Plaintiff has asserted multiple
discrimination-related claims against the four Defendants, the pending
motion for summary judgment relates only to Count V of Plaintiff's
complaint, in which Plaintiff asserts claims against Champion Exposition
Services, Inc. ("Champion" or "Defendant"), In Count V, Plaintiff alleges
that Champion refused to hire him to work on a trade show due to racial
discrimination and retaliation in violation of both Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and
also 42 U.S.C. § 1981 ("Section 1981"). On July 31, 2003, Judge Lefkow
dismissed the Title VII-based racial discrimination claim from Count V.
Defendant has moved for summary judgment concerning the remaining
allegations in Count V namely, refusal to hire as a result of racial
discrimination, in violation of Section 1981, and retaliation for
engaging in protected activity (the filing of a prior complaint of racial discrimination), in violation of Section 1981 and Title VII.*fn1
For the reasons stated below, Defendant's motion is denied.
The following relevant facts, except as otherwise indicated, are taken
from the parties' Local Rule 56.1 Statements of Material Facts and
attached exhibits, and are not in dispute.*fn2
Champion is in the business of operating trade shows. Champion employs
union carpenters to assist in setting up and dismantling booths and other
structures connected with the trade shows. Hiring for such work for any
particular Champion show is done before the beginning of the show.
Back in 1997, Plaintiff filed an EEQC charge of discrimination against
GES Exposition Services, Inc. ("GES"), another defendant in this case.
Plaintiff later sued GES in federal district court in relation to that
charge, but the district court granted summary judgment for GES in June 2001, and that judgment was affirmed by the Seventh Circuit in February
There was an overlap of hiring personnel between the trade shows that
were at issue in Plaintiff's 1997 EEOC dispute and related litigation and
the employment opportunities at issue in Plaintiff's instant suit.
Specifically, Bruce Braun and his brothers were the hiring foremen for
co-defendant GES during the period in 1997 that was the subject of
Plaintiff s 1997 EEOC charge and subsequent litigation.*fn4 Bruce Braun
also was working as a foreman for GES on what the parties describe as
"the NRA show," on which Plaintiff and a crew of other union carpenters
worked from May 19 through May 23, 2002. In addition, at the time
Plaintiff was employed in connection with the NRA show, Plaintiff knew
that Mr. Braun also variously worked as a foreman for Champion, and that
Champion would soon be hiring for an upcoming show involving the "Candy
Exposition at McCormick" ("the candy show"). On May 23, 2002, Plaintiff
spoke to Mr. Braun and Mike Weiber, another Champion foreman, about being
hired for the Champion candy show. During their discussion on May 23, Mr.
Braun and Mr. Weiber in essence told Plaintiff that they could not hire Plaintiff for the
candy show at that time, but that Champion would be hiring for the candy
show on Friday, May 31, 2002. Mr. Braun told Plaintiff that he should
therefore come back on May 31st.
Plaintiff came on May 31, 2002, as requested, hut by that day, hiring
had already been completed. In fact, the show was already in its third
day and was in the process of being dismantled. As alluded to above,
Champion asserts that its policy is that "[a]ny persons hired by Champion
Services, Inc. [to] work as a union carpenter to either set up or
dismantle a show must be present prior to the time the show begins for
that is the time that hiring is done," (D.E, 55, at ¶ 29.) Plaintiff
was told on May 31st that all the positions were already filled and that
no hiring was being done, and so he did not fill out an application.
Plaintiff observed that approximately ninety percent of the carpenters
who had worked with him on the NRA show obtained positions on the candy
show. Although it is not clear from the submissions what portion of the
repeat-hires were white individuals, some of the positions for the candy
show were filled by white workers.
Plaintiff claimed that Champion refused to hire him due to racial
discrimination and in retaliation for Plaintiff's 1997 EEOC charge and
subsequent suit against GES. Champion denied having a discriminatory or
retaliatory motive and contends that Plaintiff was not hired because
there were no positions available on May 31, 2002. Plaintiff filed his
charge against Champion with the Equal Employment Opportunity Commission
("EEOC") on July 1, 2002 and the EEOC issued its "Notice of Right to Sue"
letter to Plaintiff on July 8, 2002.
Summary judgment is proper where "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 a judgment as a matter of law."
Fed.R.Civ.P. 56(c). In determining whether there is a genuine issue of
fact, the court "must construe the facts and draw all reasonable
inferences in the light most favorable to the nonmoving party." Foley v.
City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).
A. Summary Judgment Appears Inappropriate Under Fed.R.Civ.P. 56(f).
It initially appears that summary judgment for Defendant is unwarranted
because discovery has not closed and Plaintiff has not had a full
opportunity to develop relevant evidence. Indeed, in the summary judgment
papers, neither party cites to any deposition transcript or produced
document. Instead, each party relies on its own respective single
affidavit. Further, in his brief-in-opposition to summary judgment,
Plaintiff requests that he should be given the opportunity to prove his
claims, (D.E. 65 at 3.) Construing Plaintiff's pro se filing generously,
as is required, Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001),
this Court interprets Plaintiff's brief to be invoking Rule 56(f), which
provides, in pertinent part, that "the court may refuse the application
for judgment [in order for] . . . discovery to be had or may make such
other order as is just," Fed R. Civ. P. 56(f); see Square El v. O'Leary,
No. 87 C 0495, 1988 WL 10630, at *2 (N.D. Ill. Feb. 5, 1988) (finding,
sua sponte, in action by pro se plaintiff, "that the summary judgment
motion has been brought prematurely; plaintiff should have further
opportunity for discovery before the motion is fully considered."). The
underlying rationale for Rule 56(0 is that "[s]ummary judgment . . .
should not be granted until the party opposing the motion has had an
adequate opportunity for discovery," Farmer v. Brennan, 81 F.3d 1444,
1449 (7th Cir. 1996). B. Champion's Various Arguments That Further Discovery Could Not
Be Material Are Not Persuasive.
Champion essentially asserts that further discovery by Plaintiff could
not alter Champion's entitlement to summary judgment for three principal
reasons: (1) Champion cannot be held liable for discrimination or
retaliation because it is uncontested that no candy show positions were
available and no hiring was done for the candy show on or after May 31,
2002; (2) Champion cannot be held vicariously liable for retaliation
under Section 1981 for the actions of GES that formed the basis of
Plaintiff's 1997 EEOC charge; and (3) Champion cannot be liable under
Title VII or Section 1981 because the time period between when Plaintiff
filed his charge against Champion with the EEOC on July 1, 2002, and when
the EEOC issued its right-to-sue letter on July 8, 2002, did not provide
an opportunity for meaningful conciliation. For the reasons explained
below, each of these arguments is respectfully rejected.
Defendant first argues that it is entitled to summary judgment now,
before the close of discovery, because "it is a sheer impossibility for
there to have been any claim of actionable discrimination" as "there was
absolutely no hiring taking place of anybody for any reason on the date
on which Mr. Jones ...