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JONES v. GES EXPOSITION SERVICES

April 15, 2004.

CURTIS JONES, Plaintiff,
v.
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 2002.*fn3

  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.

 II. ANALYSIS

  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 ...


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