United States District Court, N.D. Illinois
April 15, 2004.
CURTIS JONES, Plaintiff,
GES EXPOSITION SERVICES, INC., VIAD CORP., FREEMAN DECORATING AND CHAMPION EXPOSITION SERVICES INC. Defendants
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.
I. FACTUAL BACKGROUND
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 claims he sought employment," (D.E. 56 at 5.)
Defendant's contention is without merit.
Defendant does not dispute that on May 23, 2002, when Plaintiff asked
about hiring for the upcoming candy show, Defendant's foremen told
Plaintiff that hiring would take place on May 31, 2002, and that
Plaintiff should show up then. Defendant also does not dispute that by
May 31, 2002, when Plaintiff showed up as he was directed, all positions
had already been filled, In these circumstances, the fact that no hiring
for the candy show took place on or after May 31, 2002, does not foreclose liability. If Plaintiff can prove that
Defendant, with a discriminatory and/or retaliatory intent, told
Plaintiff to show up on the wrong day to prevent Plaintiff from applying
for a position on the candy show project, and that Plaintiff otherwise
would have applied, Defendant might be held liable.*fn5 See Loyd v,
Phillips Bros., Inc., 25 F.3d 518, 523-24 (7th Civ. 1994) (holding that
defendant could be held liable under Title VII for depriving plain of the
opportunity to apply for a position); see also id. at 523 ("[W]here an
employer ordinarily entertains applications for a certain type of job but
a plaintiff is deterred from applying by the very discriminatory
practices he is protesting yet can show that he would have applied had it
not been for those practices, a sufficient preliminary link between
discrimination and adverse consequence is established"); Schaffner v.
Glencoe Park Dist., No. 99 C 4714, 2000 WL 6559 at *7 (N.D. Ill. May 19,
2000) ("Had plaintiff been able to demonstrate that defendant purpose bid
the existence of the position from her and thus prevented her from
applying, plaintiff might have been able to demonstrate discriminatory
animus on defendant's part,").
In a related argument, Defendant also asserts that no actions of a
foreman on May 23, 2002, could form the basis of Plaintiff s claim
because, Defendant asserts, Plaintiff has conced as much. In this regard,
Defendant notes that in Plaintiff's 56.1 Statement, Plaintiff indicated
that he agreed with paragraph 3 of Defendant's 56.1 Statement, which
reads; "[t]he earliest and latest date that the discrimination that he
[Plaintiff] alleges took place was on May 31, 2002(a) this is the date
in the body of the [EEOC] Charge and another place in the Charge he
indicates that the discrimination only took place on a single date (there
described as May 30, 2002)." (D.E. 55 at 1-2.) However, Plaintiff's agreement with this statement
could fairly be read to mea that May 31, 2002 is the date on which
Defendant formally refused to hire him. After all, in the same filing in
which Plaintiff indicates his agreement with paragraph 3, Plaintiff also
specifies that he was told on May 23 that hiring would take place on May
31 and that he should show up on that day. Moreover, as mentioned above,
the Court is required to construe "pro se filings liberally, . . ."
Anderson, 241 F.3d at 545, Therefore, the Court will not dismiss
Plaintiffs suit on grounds that he stated that he agreed with paragraph 3
of Defendant's 56.1 Statement.*fn6
The Court also respectfully rejects Defendant's second principal basis
for granting summary judgment on Plaintiffs Section 1981 retaliation
claim namely, Defendant's "vicarious liability" argument. Defendant
contends that it is entitled to summary judgment on the Section 1981
retaliation claim because Defendant
had no agency or employment relationship with GES and
therefore any act that GES may have engaged in or its
agents may have engaged in cannot bind our agent based
on something that he may have learned at a prior point
in time and especially where all that he learned is
alleged to be the fact that Jones filed an
unsuccessful charge of discrimination. (D.E, 56 at 8-9.) However, in his retaliation claim, Plaintiff is not
seeking to hold Champion liable for prior acts of GES. The basis of
Plaintiff s retaliation claim against Champion is that Champion refused
to hire Plaintiff (through statements of Messrs. Braun and Weiber)
because Champion knew that Plaintiff had filed a discrimination claim
against GES, his former employer. The taking of an adverse employment
action against a person because that person pursued a discrimination
charge against another employer has been considered to constitute
unlawful retaliation. See Hale v. Marsh, 808 F.2d 616, 618 (7th Cir.
1986) ("Had Hale's own employer, OSHA, fired or taken other adverse
action against Hale because he had helped someone enforce her rights
under Title VII [against another employer]. . . OSHA would be guilty of
violating the retaliation provision."); see also Thompson v. Proviso
Township High Sch. Dist. 209, No. 01 C 5743, 2003 WL 21638808, at *10
(N.D.Ill. July 10, 2003).
The Court also respectfully rejects Defendant's third asserted basis
for summary judgment that the EEOC issued the right-to-sue letter only
eight days after Plaintiff's charge was filed with the EEOC, such that
"there was an absolute unavailability and impossibility for the
statutorily necessary conference conciliation and persuasion to have
occurred and none did." (D.E. 56 at 3 (emphasis added)). Defendant has
presented no meaningful argument or authority concerning whether the EEOC
in fact had a duty to try to conciliate the dispute between Plaintiff and
Defendant, and Defendant's argument fails on that basis. Moreover, in
this regard, the Court's research appears to indicate that any EEOC duty
to conciliate would have arisen only if the EEOC had determined after its
investigation that there was reasonable cause to believe mat Plaintiff's
charge is true. See 42 U.S.C. § 2000e-5 ("If the Commission determines
after such investigation that there is reasonable cause to believe that
the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice
by informal methods of conference, conciliation, and persuasion");
compare also 29 C.F.R. § 1601.20 (providing that the EEOC "may encourage
the parties to settle the charge on terms that are mutually agreeable"
prior to the EEOC issuing a determination of reasonable cause to believe
that unlawful activity has occurred) with 29 C.F.R. § 1601.19 (appearing
not to prescribe any EEOC conciliation opportunity if the EEOC reaches a
"no cause" determination). Defendant has not even asserted, let alone
presented evidence, that the EEOC made a "reasonable cause" determination
in the alleged eight-day period between Plaintiff's complaint and the
issuance of a right-to-sue letter, as opposed to some other determination
concerning Plaintiff's complaint. This too by itself is a sufficient
ground on which to set aside Defendant's argument on the record of the
case to date.
Moreover, several courts, including the Seventh Circuit, have rejected
arguments based on asserted inadequate opportunity for EEOC conciliation
as the basis for dismissing Title VII claims, at least where the
Plaintiff has not engaged in misconduct.*fn7 See, e.g., Choate v.
Caterpillar Tractor Co., 402 F.2d 357, 361 (7th Cir. 1968) ("A
complainant may have no knowledge when he receives the required
notification of what conciliation efforts have been exerted by the
Commission. And more importantly, even if no efforts were made at all,
the complainant should not be made the innocent victim of a dereliction
of statutory duty on the part of the Commission."); Long v. Ringling
Brox.-Barnum & Bailey Combined Shows, Inc., 9 F.3d 340, 342 (4th Cir.
1993) ("Neither the Commission's failure to attempt conciliation nor an aborted conciliation agreement can bar a claimant's resort to the
district court."); Kopec v. City of Elmhurst, 966 F. Supp. 640, 648
(N.D. Ill, 1997) ("[W]hile conciliation is encouraged, it is not an
inalienable right of a defendant."); Burton v. Great Western Steel Co.,
833 F. Supp. 1266, 1273 (N.D. Ill. 1993). Here, Defendant has not alleged
that Plaintiff engaged in any misconduct of the type that might support
the finding that Plaintiff wrongfully deprived Defendant of the
opportunity to conciliate.
For the foregoing reasons, Defendant's Motion for Summary Judgment is
denied. Plaintiff may proceed with discovery.