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ELLIS v. ELGIN RIVERBOAT RESORT

September 21, 2004.

LISA ELLIS, et al., Plaintiffs,
v.
ELGIN RIVERBOAT RESORT, et al., Defendants.



The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Lisa Ellis and Marcia English filed a one-count employment discrimination complaint against Defendant, Elgin Riverboat Resort d/b/a Grand Victoria Riverboat; Nevada Landing Partnership and RBG, Ltd. (collectively, "Elgin"), alleging unlawful failure-to-hire under the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (Title VII).*fn1 Elgin moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn2 Plaintiffs did not respond to Elgin's motion nor did they controvert Elgin's Local Rule 56.1 Statement of Undisputed Material Facts. In accordance with Local Rule 56.1(b)(3)(B), this Court deems all material facts set forth in Elgin's Statement of Undisputed Material Facts admitted by Ellis and English. For the following reasons, Elgin's motion is granted. I. Background

  Elgin is a state-licensed gambling facility located in Elgin, Illinois, Elgin has approximately 1600 employees, of whom slightly under 400 are dealers. Elgin utilizes a standard employment application form for the dealer position. The application includes questions about the positions sought, shift preferred, educational background, prior employment, and questions bearing upon licensing criteria established by the Illinois Gaming Board. Nowhere on the application is there any reference to the race of the applicant. Completed applications are initially received and processed by one of Elgin's human resources clerks. After processing the application, the clerk forwards it to an assistant human resources manager, who performs the initial screening function.

  During the period relevant to Plaintiffs' claims, Lennor Penson, an African-American, was the assistant human resources manager and conducted the initial screen. In conducting the initial screen, Penson would: determine if the application was complete; verify whether the applicant had any gaming experience; verify whether the applicant had worked for Elgin before (and, if so, why he left); and review the applicant's work history. Penson had full and final authority to reject an applicant based upon the results of her initial screen. During the period relevant to this lawsuit, Elgin threw out rejected applications after thirty days.

  Applications that survive the initial screen are held until the casino manager, or someone from his staff, indicates that there are openings for dealers, at which point the applications are sent to the casino manager for further screening. Further screening generally consists of a very brief review of each candidate's casino experience and job stability. Candidates whose applications survive the casino manager's screen are scheduled for an audition with Elgin's Pit Department. The auditions are held in Elgin's pavilion, a land-based structure through which patrons reach the riverboat casino when it is docked. The auditioning applicants are evaluated on: (1) knowledge of the game procedures and bet pay-offs; (2) proficiency and dexterity in dealing; (3) awareness of the game environment, including possible gaming irregularities; and (4) ability to relate to the customer and maintain a friendly and personable demeanor. The person conducting the audition determines who has passed and, at the time period relevant to the Plaintiffs' claims, had the final say on who would be given an offer of employment as a dealer. Applicants who pass the audition are offered employment contingent upon passing a drug test and criminal background check.

  In August 1998, Lisa Ellis was seeking employment as a dealer with Elgin. Ellis had experience as a dealer but a turbulent work history. Ellis worked as a dealer for Elgin from October 1994 until March 1995. Before quitting that job for health reasons, Ellis received several weeks of dealer training. Ellis was rehired by Elgin on December 5, 1995, but she terminated her employment about a week later due to scheduling issues. From May 29, 1996, until September 3, 1996, Ellis worked for Majestic Star Casino in Gary, Indiana. While the events leading up to her departure are in doubt, as of September 3, 1996, Ellis was not eligible for rehire with Majestic Star. After Majestic Star, Ellis worked at Empress Casino in Hammond, Indiana from December 12, 1996, until June 14, 1997. Empress Casino's records suggest Ellis had attendance problems when she worked there. Ellis was hired by Hollywood Casino on September 8, 1997, but she terminated her employment on September 10, 1997, because of scheduling issues. After September 10, 1997, Ellis was not eligible for rehire with Hollywood Casino. Finally, in June 1998, Ellis was employed by Trump Casino in Gary, Indiana, where she worked for approximately one month before resigning.

  In August 1998, Marcia English was also seeking work as a dealer for Elgin. English worked as a full-time school teacher since September 1972 but had experience as a casino dealer as well. From May 1996 until November 1998, English worked as a dealer for Majestic Star Casino in Gary, Indiana.

  While both Ellis and English submitted applications to Elgin, only English was invited to audition on August 12, 1998. In fact, on August 10, 1998, Ellis learned that her application had been rejected. Ellis claims that, despite the formal rejection, Elgin Pit Boss Kevin Schmieder encouraged her to attend the August 12 audition because the casino needed dealers. (Ellis Dep., 10/4/02, at 326-28.) So, on August 12, 1998, Ellis, English and English's friend, Yvonne Mason, went to Elgin to audition for jobs as dealers. Elgin permitted all three women to audition but told Ellis and Mason that they would audition last because they were the only candidates not on the schedule and that they would need to submit new application forms before Elgin would consider them for employment.

  Ellis and English state that there were six other candidates auditioning for dealer positions on August 12, 1998. There are no records of who auditioned that day and the identities of the other candidates remain unknown. According to Ellis and English, the other candidates included one Asian woman, four Caucasian women and one Caucasian man. (Id. at 338-39.) Ellis and English claim that all of the Caucasian candidates auditioned together for about forty-five minutes while the rest waited in a separate room. (Id. at 343-44.) Ellis and English do not know what transpired during the auditions. (Id. at 342-44.) After the first group was finished, Ellis, English, Mason and the Asian woman began their audition. Ellis and English claim that their audition was cut short when the persons conducting the audition indicated that they needed to leave early in order to be on the casino boat before it left the dock. (Id. at 350-53.) The Plaintiffs do not recall if the boat actually left the dock following their auditions. Elgin acknowledges that the Plaintiffs' audition may have been rushed because in 1998 dockside gambling was not permitted so the casino was required to leave the dock before gambling could begin. (Grainger Aff. ¶ 8.)

  After the auditions, Ellis, English and Mason went to the Human Resources Department so that Ellis and Mason could submit dealer application forms. Ellis and English claim that they encountered the Caucasian candidates in the Human Resources Department and that the Caucasians were holding drug test forms. (Ellis Dep., 10/4/02, at 357-58, 376-77.) The fact that all of the Caucasians were in possession of these forms indicated to the Plaintiffs that the Caucasians had all been offered jobs after their audition. (Id. at 358.) A few days later, Ellis and English were informed by mail that their applications had been rejected.

  Plaintiffs filed suit against Elgin for employment discrimination in November 1998 and amended that complaint in July 1999. Plaintiffs originally brought this suit as a class action. After receiving class certification, however, Plaintiffs' investigation and discovery efforts failed to produce sufficient evidence of a pattern or practice of racially discriminatory hiring as a standard operating procedure at Elgin and on August 22, 2003, this Court decertified Plaintiffs' class action.*fn3 Now before the Court is Elgin's motion for summary judgment. Plaintiffs have not responded to Elgin's motion nor have they controverted Elgin's Local Rule 56.1 Statement of Undisputed Material Facts. In accordance with Local Rule 56.1(b)(3)(B), "[a]ll material facts set forth in the statement required of the moving party [Elgin] will be deemed to be admitted unless controverted by the statement of the opposing party."

  Summary judgment is appropriate when the record shows "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Sinkler v. Midwest Prop. Mgmt., Ltd., 209 F.3d 678, 683 (7th Cir. 2000). In determining whether summary judgment is appropriate, the Court must view the evidence, and draw all reasonable inferences therefrom, in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992). However, if the nonmovant bears the burden of proof on an issue he or she may not simply rest on the pleadings, but rather must affirmatively set forth specific facts establishing the existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322-26.

  Summary judgment is appropriate when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. If taking the record in its entirety cannot lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

  Ellis and English allege in their complaint that, in violation of Title VII, Elgin refused to hire them because they are African-Americans. Title VII makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging employment discrimination under Title VII may either present direct evidence of discrimination or proceed under McDonnell Douglas's burden-shifting formula. Under the direct method, Ellis and England must present enough direct or circumstantial evidence of discriminatory motivation to create a genuine issue for trial. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th 2000). "Direct evidence essentially requires an admission by the decision-maker that his actions were based on the prohibited animus." Id. Where there is no direct evidence of discrimination, the plaintiff may proceed under the indirect burden-shifting formula established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The burden-shifting formula allows Ellis and English to establish a prima facie case of race discrimination when they show: (1) that they belong to a racial minority; (2) that they applied and were qualified for a job for which Elgin was seeking applicants; (3) that, despite their qualifications they were rejected; and (4) the position was given to someone of a different race who had similar or lesser qualifications. Malacara v. City of Madison, 224 F.3d 727, 729 (7th Cir. 2000). If Ellis and English succeed in establishing a prima facie case, the burden of production shifts to Elgin to articulate a legitimate, nondiscriminatory reason for its action. Id. If Elgin satisfies its burden of production, Ellis and English must then establish that Elgin's nondiscriminatory explanations are mere pretext for discrimination. To do this, Ellis and English must show that either (1) it is more likely that a discriminatory reason motivated Elgin than the proffered nondiscriminatory reason or (2) that ...


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